Valente v. Bailey

447 P.2d 589, 74 Wash. 2d 857, 1968 Wash. LEXIS 834

• Court: Washington Supreme Court
• Decided: November 21, 1968
• Docket: 38917
• Status: Published

Opinions

Finley, C. J.

This case concerns an action for personal injuries and property damage arising out of a collision between plaintiffs’ automobile and defendants’ Jeep. The principal question raised is whether there was sufficient evidence of contributory negligence on the part of plaintiff-driver to warrant submission of this issue to the jury.

The collision in question occurred on Renton Avenue, a 2-lane street in a residential area of Seattle, Washington. Defendant Thomas Bailey was driving his father’s Jeep south on Renton Avenue with a friend, William Erickson. The two were looking for a red-colored pickup truck which was supposed to be parked alongside one of the homes on the street. The truck was owned by an individual the young men believed would give them advice on repair of an automobile.

The plaintiffs in their automobile were following behind the defendant as he proceeded slowly down the street looking for the red truck. The evidence indicates that defendant and his friend finally located the truck. This was after they had passed it, however, since it was partially obscured by a hedge. Defendant decided to turn left into a driveway to turn around and go back. As he was making his turn, plaintiffs decided to pass him. A collision resulted.

In the ensuing action brought by plaintiffs, the trial court instructed the jury that defendant-driver was negligent as a matter of law. The sole issue of liability submitted by the court concerned plaintiffs’ contributory negligence. The jury returned a verdict for defendants and plaintiffs appeal.

Two matters with respect to plaintiffs’ appeal may be quickly settled. First, two of plaintiffs’ three assignments of error are plainly without merit and thus need only brief discussion. Error is assigned to failure of the trial court to direct a verdict for plaintiffs, but since plaintiffs made no motion for a directed verdict there is no basis for a claim of error. Error is also assigned to the trial court’s denial of plaintiffs’ motion for a new trial and its entry of judgment on the jury’s verdict, but this point is not argued in plaintiffs’ brief and will not be considered by this court on appeal. State v. Schaffer, 70 Wn.2d 124, 422 P.2d 285 (1966).

Second, plaintiffs argue in their brief that it was error for the trial court to refuse to allow plaintiff-driver to answer his attorney’s question with respect to whether he had ever been convicted of a crime. This error is not set forth in the “assignments of error” in plaintiffs’ brief and will not be considered on appeal. ROA 43.

The principal question before us, raised in plaintiffs’ one remaining assignment of error, is whether there was sufficient evidence of plaintiffs’ contributory negligence to submit this issue to the jury.

We have serious doubts whether plaintiffs succeeded in preserving even this one question on appeal. Plaintiffs took no exception to any of the contributory negligence instructions given by the trial court nor assigned error to any of them. When instructions are given without exception by either party they become the law of the case, unless failure to consider them would constitute a grave miscarriage of justice. State v. Silvers, 70 Wn.2d 430, 423 P.2d 539 (1967). Furthermore, although plaintiffs excepted to the failure of the trial court to give their proposed instruction which in effect directed the issue of liability against defendants, no error was assigned to such failure as required by ROA 43 and the proposed instruction was not set forth in plaintiffs’ brief as required by ROA 42(g)(1) (in).

Even assuming, however, that plaintiffs’ remaining assignment of error is not fatally defective from a procedural standpoint, it still will not withstand substantive scrutiny. Plaintiffs are, in essence, asking this court to overrule the jury’s verdict. As we have said on so many occasions, this is something we do only rarely, and then only when it is clear that there is no substantial evidence upon which the jury could have rested its verdict. See, e.g., Swartley v. Seattle School Dist. No. 1, 70 Wn.2d 17, 421 P.2d 1009 (1966); State v. Mickens, 61 Wn.2d 83, 377 P.2d 240 (1962). Such is not the case here.

Defendant testified that he extended his arm out the window of the Jeep, signaling a left turn, while he was passing “at least a couple or three houses” at a very slow rate of speed. If accepted as true by the jury, this strongly suggests that plaintiffs should have been put on notice that defendant was going to turn left, and that it was negligence to pass him under the circumstances. See Tobias v. Rainwater, 71 Wn.2d 845, 431 P.2d 156 (1967),¹ In addition, plaintiff-driver testified that defendant, prior to the accident, varied his speed frequently and, along with his passenger, looked left and right as if trying to locate something. The Seattle Traffic Code, Seattle Ordinances § 21.40.160, requires drivers to sound their horns “when reasonably necessary to insure safe operation” of their vehicles. The circumstances of the case strongly suggest that plaintiff should have sounded his horn before attempting to pass defendant, and that failure to do so constituted negligence.

As can be seen from the foregoing paragraph, the evidence presented at trial suggested at least two substantial bases upon which the jury’s conclusion that plaintiffs were contributorily negligent could have rested. We certainly cannot reverse this conclusion as a matter of law.

The judgment of the trial court is affirmed.

Hill, Hunter, Hamilton, Neill, and McGovern, JJ., concur.

1 There is considerable question whether defendant’s arm signal, if in fact he made one, lasted during the time his Jeep traveled 100 feet, as required by Seattle Ordinances § 21.22.240. Even if it did not, however, this only relates to defendant’s negligence. It says nothing about plaintiff-driver’s contributory negligence.