Nist v. Tudor

407 P.2d 798, 67 Wash. 2d 322, 1965 Wash. LEXIS 681
CourtWashington Supreme Court
DecidedNovember 10, 1965
Docket37227
StatusPublished
Cited by63 cases

This text of 407 P.2d 798 (Nist v. Tudor) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nist v. Tudor, 407 P.2d 798, 67 Wash. 2d 322, 1965 Wash. LEXIS 681 (Wash. 1965).

Opinions

Hale, J.

— The collision between a truck and automobile September 9, 1960, seriously injured Margaret L. Nist, jeopardized a friendship between neighbors, and impelled this court to make another study of gross negligence.

It was a bright summer morning when Margaret Nist set out with Crystal M. Tudor, her friend and neighbor, as a passenger in the Tudor car to go bean picking at the Umbedock farm. The farm was located between Kent and Renton on the west side of the East Valley Highway and could be reached by turning west off the highway onto a dirt road or lane leading to the bean fields.

Taking a circuitous route to avoid heavy morning traffic, with Mrs. Tudor at the wheel and Mrs. Nist in the front seat beside her, they entered upon the East Valley Highway and drove north. About 500 feet before reaching the dirt road where she intended to turn left, the highway, level and dry, ran straight for more than a mile toward the north. Mrs. Tudor slowed the car, and in the far distance observed a truck coming toward her from the north but she did not take note of its speed. She turned on the blinker [324]*324light signal for a left turn and in her rear view mirror saw a car pulling out behind her to pass. Moving ahead very slowly with her left-turn blinker signal on, she waited a second or two after the following car went by and then, turning abruptly to the left, drove toward the dirt road across the highway into the path of the oncoming truck. The truck was only 15 or 20 feet away when Mrs. Tudor saw it bearing down upon her and, too late for either driver to change course, the truck crashed into the right side of the Tudor car, seriously injuring Mrs. Nist.

Mrs. Nist, as a guest passenger, brought this action against Mrs. Tudor alleging gross negligence. At the close of the plaintiffs’ case, the trial court sustained defendants’ challenge to the sufficiency of the evidence, ruling as a matter of law that defendants’ actions did not constitute gross negligence under the host-guest statute. RCW 46.08.080. Giving a literal interpretation to our frequently expressed statement that gross negligence means the failure to exercise slight care (Crowley v. Barto, 59 Wn.2d 280, 367 P.2d 828 (1962); Eichner v. Dorsten, 59 Wn.2d 728, 370 P.2d 592 (1962)), the trial court construed the statement to mean that, if the defendant driver exercised any care at all for the safety of her guest passenger, the passenger could not recover. Thus, in the court’s opinion, when Mrs. Tudor slowed her car to a near stop and waited for a following car to pass before making her left turn, and gave a left-turn signal, she was exercising sufficient care to negate a finding of gross negligence.

From a judgment of dismissal entered on a challenge to the sufficiency of the evidence, plaintiffs appeal.

The idea that the driver of an automobile owes less than ordinary care to his guest passenger and, therefore, is not liable to him short of gross negligence, originated in this state with the courts and not with the legislature and has its genesis in the law of bailments where it is the rule that a gratuitous bailee is without liability unless grossly negligent. Bradford-Kennedy Co. v. Buchanan, 91 Wash. 539, 158 Pac. 76 (1916), cited with approval in Saxe v. Terry, 140 Wash. 503, 250 Pac. 27 (1926); Altman v. Aron[325]*325son, 231 Mass. 588, 121 N.E. 505, 4 A.L.R. 1185 (1919). Thus, the legislature adapted from the courts a principle that an automobile driver owes the same duty of care for the safety of his passengers as he does for a borrowed lawnmower— a rule conceived long before the advent of the automobile.

When the legislature enacted Laws of 1961, ch. 12, § 46.08.080, p. 250, it did not amplify this concept of gross negligence:

No person transported by the owner or operator of a motor vehicle as an invited guest or licensee, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless the accident was intentional on the part of the owner or operator, or the result of said owner’s or operator’s gross negligence or intoxication, and unless the proof of the cause of action is corroborated by competent evidence or testimony independent of, or in addition to, the testimony of the parties to the action: Provided, That this section shall not relieve any owner or operator of a motor vehicle from liability while it is being demonstrated to a prospective purchaser.

A review of the commentaries, scholarly treatises and case law1 on gross negligence shows the term to have universally escaped definition, and despite the most assiduous efforts to give it precision it retains its amorphous quality. Every qualifying word added to sharpen the phrase seems to obscure in about the same degree as it clarifies it and inevitably invites further definition. Or, standing alone in its self-contained significance, great negligence, the idea remains extremely difficult for the trial courts to apply in specific situations. The problem ever remains: Was there sufficient proof of great negligence to submit the issue to the jury? Our cases show the trouble the courts have in answering this query.

In Saxe v. Terry, supra, where, on a dark night, the driver, knowing he would shortly enter another curve, took one turn so fast as to evoke a comment from his passenger and [326]*326went into a ditch on the second curve, this court reversed a judgment entered on a plaintiff’s verdict and held as a matter of law that, although there was evidence of negligence, there was no evidence of gross negligence. Similarly, where a driver parked his truck illegally upon the traveled portion of the roadway in violation of a statute, being thus negligent as a matter of law, and refused to move his truck at a signal from another truck approaching from the rear, he too, as a matter of law, was not grossly negligent. Klopfenstein v. Eads, 143 Wash. 104, 254 Pac. 854, 256 Pac. 333 (1927).

Following closely in time and citing the preceding cases, Blood v. Austin, 149 Wash. 41, 270 Pac. 103 (1928), declared again, “As to an invited guest one is required to exercise only slight care and will be liable only for gross negligence.” Evidence that driving in the center of and along an icy, chuckholed road covered with loose gravel, at 30 to 40 miles per hour into a clearly posted curve, did not as a matter of law supply evidence of gross negligence when the car went off the highway through a railing on the left of the road, even though the passengers had several times warned the driver to slow down.

In Dailey v. Phoenix Inv. Co., 155 Wash. 597, 285 Pac. 657 (1930), this court reversed a plaintiff’s judgment for injuries to a guest passenger. Just before entering a curve, the driver drove 40 miles per hour at night, overtaking and passing two cars going in the same direction. The car left the road at a turn into an intersecting road, crashing and injuring the guest passenger. We held as a matter of law that the evidence did not show gross negligence. Similarly: Lothspeich v. Morrell, 173 Wash. 55, 21 P.2d 287 (1933); Dawson v. Foster, 169 Wash.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Marci Peterhans, V. University Of Washington, Et Ano
Court of Appeals of Washington, 2025
Ryan Gutierrez, V. Hardcore Barbell, Llc
Court of Appeals of Washington, 2025
Atkerson v. Dep't of Child., Youth, & Fams.
Washington Supreme Court, 2025
Stewart v. Extra Space Storage
W.D. Washington, 2024
Nadja Ibrahim, V. Wa State Dshs
Court of Appeals of Washington, 2023
Smith v. NaphCare Inc
W.D. Washington, 2023
Rapp v. NaphCare Inc
W.D. Washington, 2022
Grae-El v. City of Seattle
W.D. Washington, 2022
Chen v. D'Amico
W.D. Washington, 2020
Lesa Samuels v. City Of Tacoma
Court of Appeals of Washington, 2019
Harper v. State
429 P.3d 1071 (Washington Supreme Court, 2018)
Swank v. Valley Christian School
Washington Supreme Court, 2017
Brian Pellham v. Let's Go Tubing, Inc.
398 P.3d 1205 (Court of Appeals of Washington, 2017)
Larry Riley v. Iron Gate Self Storage
395 P.3d 1059 (Court of Appeals of Washington, 2017)
Estate of Viola Williams v. Lourdes Health Network
Court of Appeals of Washington, 2016
Banks v. Society of St. Vincent De Paul
143 F. Supp. 3d 1097 (W.D. Washington, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
407 P.2d 798, 67 Wash. 2d 322, 1965 Wash. LEXIS 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nist-v-tudor-wash-1965.