Nelson v. Blake

434 P.2d 595, 72 Wash. 2d 652, 1967 Wash. LEXIS 846

Opinions

Hill, J.

Only one issue is presented on this appeal:¹ In an intersection collision (nonarterial; no traffic controls) was the contributory negligence of the favored driver (the driver on the right) a jury question where there was testimony that he was traveling 40 miles per hour (he says 20 to 25; the legal limit was 25 miles per hour) on a street covered with compact snow and ice (as were all streets in the area) and was within 30 feet of the intersection when he first saw the disfavored driver’s car some 60 feet from the intersection. (The disfavored driver’s testimony places the favored driver 100 feet from the intersection when the disfavored driver was 67 feet from it.)

On this conflicting testimony, the trial court submitted the issue of the favored driver’s contributory negligence to the jury; and the jury, by its verdict for the defendant, of necessity must have found the favored driver eontributorily negligent.

This may well be known as the “compact snow-and-ice case,” for the traffic hazards that are inherent in traveling on compact snow and ice were part of the prevailing conditions that the jury had to take into consideration in determining whether the favored driver exercised reasonable care for his own safety.

We agree that the contributory negligence of the favored driver, under the circumstances indicated, was a jury question; and that the judgment, based on the jury verdict denying him any recovery, should be affirmed.

The court desires to make it clear that there is no weakening of the rule laid down in our cases² construing the right-of-way statute then in effect, i.e. RCW 46.60.150 (now RCW 46.61.180).³

The disfavored driver’s negligence in failing to yield the right of way is clear, and we are not concerned on this appeal with any attempt on his part to recover damages.

The favored driver, having the right of way, would have recovered in this case but for the finding of the jury that he, too, was negligent and that his negligence was a contributing cause of the collision. We have frequently, as in Robison v. Simard, 57 Wn.2d 850, 360 P.2d 153 (1961), held that a favored driver may not recover where he has failed to operate his car in a careful and prudent manner under prevailing conditions.⁴

The jury could have concluded that the favored driver was driving too fast under the conditions then existing, or that he had failed to keep the lookout for traffic on his left that an ordinarily prudent man would have done, or both. We are unable to say, as a matter of law, that he was not contributorily negligent; and therefore the issue of contributory negligence was for the jury.

The judgment is affirmed.

Finley, C. J., Weaver, Hunter, Hamilton, and Neill, JJ., concur.

Footnotes

1

The original opinion in this case appeared in the advance sheets of November 11, 1966 (69 W.D.2d 626). It did not appear in 69 Wn.2d, inasmuch as a rehearing was then pending. On the rehearing, it was decided to withdraw the original opinion and to replace it with the present opinion.

2

Archibald v. Gossard, 65 Wn.2d 486, 397 P.2d 851 (1965); Sanders v. Crimmins, 63 Wn.2d 702, 388 P.2d 913 (1964); Mondor v. Rhoades, 63 Wn.2d 159, 385 P.2d 722 (1964).

3

“Every operator of a vehicle on approaching public highway intersections shall look out for and give right of way to vehicles on his right, simultaneously approaching a given point within the intersection, and whether his vehicle first reaches and enters the intersection or not: . . .” RCW 46.60.150.

4

Additional cases similar in result to Robison v. Simard, supra, include Day v. Frazer, 59 Wn.2d 659, 369 P.2d 859 (1962); Watson v. Miller, 59 Wn.2d 85, 366 P.2d 190 (1961); Reynolds v. Kuhl, 58 Wn.2d 313, 362 P.2d 589 (1961).