Payne v. Vinecore

246 P.2d 448, 40 Wash. 2d 746, 1952 Wash. LEXIS 385

• Court: Washington Supreme Court
• Decided: July 10, 1952
• Docket: 31940
• Status: Published

Opinions

Hamley, J.

A head-on collision between two automobiles on a graveled county road between Beebe bridge and the town of Orondo, in Douglas county, gave rise to this lawsuit. The road extends in a northerly and southerly direction, but has a jog in it which requires a southbound driver to turn first to his right (west) and then to his left (south).

Howard L. Payne was driving in a southerly direction along this road. He had made the turn to his right and was completing the turn to his left. At this point the road is twenty-six feet wide from shoulder to shoulder. However,, due to the presence of some loose rocks ánd a shallow washout on the westerly six feet of the road, only the easterly twenty feet of the road was in regular use.

There was from three to six inches of snow on the road, and only one set of tracks had been made in this snow prior to the accident. This set of tracks, which had apparently been used by both north and south-bound traffic, was more or less down the center of the road. However, on the curve in question, the tracks veered towards the inside of the curve, i.e., towards Payne’s left (east). The exact location of the tracks at the point of impact is a matter for discussion at a later point in this opinion.

Glenn E. Vinecore was driving north in this same set of tracks. As the two drivers came in sight of each other, Payne pulled to his right and yielded about half of the tracks to the northbound driver. Vinecore did not pull to his right and when he applied his brakes, his car actually swerved somewhat to his left. The head-on collision resulted,

Payne and his wife thereafter brought this action to recover damages sustained by them in the accident. Vinecore answered with a general denial, an affirmative defense of contributory negligence, and a cross-complaint for his damages sustained in the collision. The case was tried to the court without a jury. The court awarded Payne a judgment in the sum of $784. Vinecore appeals.

Appellant assigns as error the trial court’s findings and conclusions to the effect that Payne was not guilty of contributory negligence.. It is appellant’s position that Payne was contributorily negligent in that his automobile was encroaching upon Vinecore’s share of the highway at the time the accident occurred.

The rule of the road here in question is set out in RCW 46.60.010 (Rem. Rev. Stat., Vol. 7A, § 6360-75), and reads as follows:

“Whenever a person is operating a vehicle upon a public highway of this state he shall at all times drive it to the right of the center of such highway except when in the exercise of care in overtaking and passing another vehicle traveling in the same direction, or where an obstruction exists, it is necessary to drive to the left of the center of the highway, providing it is done with due care and right of way is extended to vehicles traveling in the proper direction upon the unobstructed portion of the highway.”

Appellant objects to the way in which the trial court determined the “center of such highway” in applying this rule of the road.

It was the trial court’s view, expressed in its second oral opinion, that the one set of wheel tracks in the snow marked “the center line of the road that is being used at the time that the accident occurred.” The testimony was undisputed that Payne yielded at least one-half of these wheel tracks to Vinecore. The trial court therefore concluded that Payne had not encroached upon Vinecore’s share of the highway, and hence was not contributorily negligent.

The proposed findings of fact and conclusions of law which were before the court when this second oral opinion was announced were thereupon redrafted to accord with this view. Thus, in the one paragraph of the revised findings which describes the accident, five different references are made to the one set of tracks on the roadway, and it is indicated that, for the purpose of this case, these traveled tracks constitute the traveled portion of the roadway.

In our opinion, the trial court erred in relying upon the wheel tracks in the snow, regardless of their position on the highway, as indicative of the center of the highway for the purpose of applying this rule of the road. Where, as here, there is no center stripe laid out by road crews, the term “center of such highway,” as used in the quoted statute, means the geographical center of the highway.

It would be confusing and dangerous to sanction a temporary shifting of the center line, as so determined, to conform to wheel tracks in the snow. If this were the rule, then the first driver who happened to come along over newly-fallen snow, however good or bad his judgment might be, would have it in his power to lay out, with the wheels of his automobile, a new “center line” which would govern as long as the snow lasted and the single set of tracks was maintained. This would be true even though the driver who made the original tracks might fail to maintain a regular course or might approach dangerously close to one or the other side of the road. Even an experienced and expert driver, traveling over untracked snow, would ordinarily be expected to use the portion of the highway which seemed best from the standpoint of a vehicle traveling in his direction, and would not have in mind that he was laying out a guide for vehicles traveling in the opposite direction.

In Purdie v. Brunswick, 20 Wn. (2d) 292, 296, 146 P. (2d) 809, we rejected the contention that an obstruction on the street automatically and of necessity moved the center line of the street correspondingly. We there said that, if such were held to be the law, it would “create irregularity and uncertainty as to center lines of streets and highways in general.” If an obstruction in the street does not move the center line, certainly a mere traveled set of tracks in the snow would not move the center line. There is no contention here that the snow itself constituted an obstruction within the meaning of the quoted statute.

In Shelley v. Norman, 114 Wash. 381, 195 Pac. 243, we approved an instruction, part of which sanctioned the determination of the center line with reference to two sets of traveled tracks in the gravel or dirt. That is not the situation here. Moreover, that case was decided long prior to the enactment of RCW 46.60.010, and is not authoritative in the construction of that statute.

On this appeal, respondent does not argue in support of the “wheel track” theory. Instead, it is his position that, while the highway was twenty-six feet wide from shoulder to shoulder, only the easterly twenty feet thereof should be considered as the traveled portion of the road, and that, at the time of the impact, Payne’s automobile was entirely on his right side of that twenty-foot traveled portion of the road.

The difficulty, with this contention is that it is not supported by the findings of fact of the trial court. On the contrary, those findings, when read in the light of the trial court’s two oral decisions, establish that Payne was not driving to the right of the center of the easterly twenty feet of the highway at the time of the accident.

It is true that the trial court, in its first oral opinion announced at the close of the trial, adopted the theory which respondent now advances. In its second oral opinion, however, the court stated that, in rendering the first opinion, the court had partially miscalculated the position of the automobiles at the time of the collision. The court then stated that it would make a finding that, at the time of the impact, the east or left side of Payne’s car “was approximately 8— 7% or 8 feet from the east edge of the road according to the measurements.”

No specific finding to this effect was actually incorporated into the findings of fact. However, the trial court did find that, at the point of the accident, the wheel tracks “had cut over on the inside of the curve.” The court further found that, at the time of the collision, Payne’s left wheels were in approximately the westerly track. Read in the light of the trial court’s calculation in its second oral opinion as to the distance between the left side of Payne’s car and the east side of the road, this amounted to a finding that Payne was éncroaching upon the easterly ten feet of the highway at the time of the accident. Where, as here, the formal findings of fact are consistent with the views expressed in the oral decision, they are to be read in the light of the views expressed in that decision. Mertens v. Mertens, 38 Wn. (2d) 55, 59, 227 P. (2d) 724.

This finding of fact is not contrary to the clear preponderance of the evidence. The state patrolman who took the only measurements at the scene of the accident testified that Payne’s car came to rest “straddle of the yellow line,” though “he was on the west side a little more than he was on the east side.” There was no actual yellow fine, the patrolman intending by this reference to indicate a point thirteen feet from each shoulder. This would place Payne’s left front wheel about ten or eleven feet from the east side of the road.

But the collision had forced both cars to the west, so that the actual point of impact was somewhat east of where the vehicles had come to rest. The state patrolman estimated that the westward movement did not exceed eighteen inches. Payne testified that the collision had forced the automobiles five or six feet “up the road kind of sideways.” Leonard Brown, called by respondent, testified that the accident shoved Payne’s car sideways and back “three to five feet.” Forrest M. Blair, also called by respondent, testified that when Vinecore “hit Mr. Payne’s car it didn’t move over 3 or 4 feet from the right to the west ...” Albert Mitchell, called by appellant, testified that both cars had been pushed sideways to the west “three or four feet.”

It would appear from this evidence that the collision occurred about where the trial court said it did— seven and one-half to eight feet from the east edge of the road. Thus, even if respondent is correct in contending that only the easterly twenty feet of the highway should be considered in applying the rule of the road in question, Payne’s automobile was nevertheless encroaching upon Vinecore’s share of the road at the time of the accident.

Neither the findings nor the evidence indicate that Payne’s presence on the easterly ten feet of the highway was excused under either of the two exceptions referred to in the statute in question. He was not overtaking and passing another vehicle traveling in the same direction. There was no obstruction which required him to encroach upon the easterly ten feet of the highway.

It necessarily follows that this encroachment constituted a violation of RCW 46.60.010, and was negligence per se. It is not necessary to decide whether respondent is correct in contending that, under the circumstances of this case, only the easterly twenty feet is to be considered in applying this rule of the road.

Respondent argues that, even had Payne’s vehicle been five or six feet farther west on the highway as he was traversing the curve, Vinecore’s vehicle still would have collided with respondent’s car. In this connection, respondent calls attention to evidence tending to show that, at the time of the collision, Vinecore was driving his vehicle in a straight line in a northerly direction across the apex of the curve. Respondent also cites Wheaton v. Stuck, 34 Wn. (2d) 725, 209 P. (2d) 377, to the effect that, if the accident would have occurred regardless of the fact that the defendant may have been operating his vehicle on the wrong side of the road, the right of recovery remains.

It is, of course, true that the mere driving or presence of an automobile on the wrong side of the highway does not constitute contributory negligence unless it is shown that it was a proximate cause of the accident. Wilson v. Congdon, 179 Wash. 400, 37 P. (2d) 892; Wheaton v. Stuck, supra. In the Wheaton case, the defendant entered a county road from a private road without stopping. His car struck plaintiff’s vehicle, which was proceeding down the center of the county road. While the facts might have justified the court in holding that plaintiff’s encroachment on the left side of the road was not a proximate cause of the accident, the case actually turned on a different point. The court held that plaintiff was warranted in following tracks down the center of the road, and was, therefore, not negligent, because loose gravel several inches deep constituted an obstruction on either side.

In the instant case, the evidence indicates that Vine-core’s car went to its left after he applied the brakes upon seeing Payne’s car partially on the east side of the road. It would be pure speculation for us to say that, had Payne seasonably pulled his car over to his right side of the road, Vinecore would nevertheless have applied his brakes at the same time and with the same result. On this record, it seems plain to us that the encroachment of Payne’s car on the east side of the road and his failure to extend the right of way was a proximate cause of the accident.

Appellant’s remaining assignments of error challenge a number of findings of fact wherein the trial court found that Vinecore was operating his vehicle in a negligent manner and that such negligence was a proximate cause of the accident. This finding has a bearing upon Vinecore’s cross-complaint for damages.

Specifically, the trial court found that Vinecore operated his vehicle in a careless, reckless, and negligent manner, and at an excessive rate of speed; that he failed seasonably to turn his vehicle to the right of the center or to yield any part of the traveled portion (set of wheel tracks) of the roadway; and that he applied his brakes, lost control of his vehicle, and skidded into Payne’s vehicle.

The finding that Vinecore was negligent in failing to yield half of the road to Payne is not supportable, in view of our discussion above, and in view of the undisputed testimony that it was the two left front ends of the automobiles which came into contact (thereby indicating that Vine-core’s car was not encroaching upon Payne’s side of the highway).

But the fact that the head-on collision occurred on Vinecore’s side of the road does not of itself preclude a finding that his own negligence may have contributed to the accident. The applicable rule was stated by Judge Steinert, in Purdie v. Brunswick, supra, page 297, as follows:

“Indubitably, a motorist who, under statutory rules or by accepted custom, has the right of way must nevertheless exercise reasonable care to avoid colliding with a vehicle which is being driven on the wrong side of the road, the question being always one of ordinary care under the existing circumstances. Thomson v. Schirber, 164 Wash. 177, 2 P. (2d) 664; 2 Berry, Automobiles (7th ed.), § 2.477, p. 561; 2 Blashfield, Cyclopedia of Automobile Law and Practice (Perm, ed.), § 918, p. 60. This is but an application of the universally accepted rule that a motorist must always operate his vehicle with due regard for the safety of other travelers on the highway and must exercise such care as is commensurate with the dangers to be anticipated.”

We are of the view that, under the circumstances of this case, the specific findings of the trial court as to excessive speed and the losing control of the car are sufficient to support the ultimate finding as to Vinecore’s negligence.

Yinecore was a star route mail contractor over the road in question, and had traveled this road hundreds of times. He therefore knew of the conditions which tended to force southbound traffic towards the east side of the road at this particular curve. He was also aware, on the day in question, that apparently all traffic moving in either direction was using the one set of wheel tracks in the snow. The court was justified in finding that his speed, variously estimated at from twenty to forty miles an hour, was excessive under the circumstances, and that his failure to keep his car under sufficient control to meet the emergency which arose, indicated negligence.

The judgment is reversed and the cause is remanded, with direction to enter a judgment of dismissal with prejudice on both the complaint and cross-complaint.

Schwellenbach, C. J., Hill, and Olson, JJ., concur.