Zahn v. Arbelo

434 P.2d 570, 72 Wash. 2d 636, 1967 Wash. LEXIS 845

• Court: Washington Supreme Court
• Decided: November 30, 1967
• Docket: 38201
• Status: Published

Opinions

Hill, J.

This is an action by a favored driver against a disfavored one who failed to yield the right of way.

The favored driver was proceeding south on Elm Street, an arterial; the disfavored driver was traveling east on Third Street. The disfavored driver either ran the stop sign and proceeded across the arterial under modified jet propulsion, or he stopped for the stop sign and then practically crept across the arterial.¹ In either event, the collision occurred near the center of the paved portion (20 feet in width) of the arterial.

The negligence of the disfavored driver in failing to yield the right of way cannot be gainsaid. The sole issue on the appeal is whether the trial court should have submitted the issue of the favored driver’s contributory negligence to the jury.

The trial court’s view was that if the favored driver was negligent in failing to keep a proper lookout ahead (the only negligence claimed), this negligence did not contribute to the collission, i.e., it was not a proximate cause.

We shall assume, as defendant (disfavored driver) testified, that he stopped for the stop sign and then proceeded slowly past the stop sign into the intersection. But this testimony creates its own dilemma. The favored driver on an arterial protected by a stop sign has one of the strongest rights of way which the law allows. Certainly as strong as the one discussed in Mondor v. Rhoades, 63 Wn.2d 159, 385 P. 2d 722 (1963). If the favored driver had seen the disfavored driver proceeding slowly toward the paved portion of Elm Street, the favored driver would have had every reason to believe that the disfavored driver would stop and yield the right of way, as he was lawfully obligated to do. Archibald v. Gossard, 65 Wn.2d 486, 397 P.2d 851 (1965). It was only after the slowly-proceeding, disfavored driver had entered the paved portion of Elm Street, which put him within 11 feet or less of the point of impact, that the favored driver had any reason to believe that the disfavored driver was not going to yield the right of way. The disfavored driver put his speed at 4 to 7 m.p.h. Had it been 4 miles an hour, it would have taken less than two seconds² from the time he entered the paved portion of Elm Street to travel the 11 feet to the point of impact.

Had the favored driver had his eyes focused on the disfavored driver at the exact instant it became apparent that the latter was not going to yield the right of way, the favored driver—whether traveling 10, 15, or 20 miles an hour³—was then so close to the point of impact that, making allowance for reaction time⁴, he could not then have avoided the collision if the disfavored driver continued on his collision course.

To hold that a driver traveling on the paved portion of an arterial cannot rely on his right of way merely because he sees a disfavored driver slowly approaching the paved portion of such arterial, would make a mockery out of our right-of-way rule. We think the trial court was correct in holding, under the situation here presented, that if there was a failure to keep a proper lookout ahead by the plaintiff, it could not have been a proximate cause of the collision.

The judgment is affirmed.

Weaver, Rosellini, Hunter, and Hamilton, JJ., and Langenbach, J., Pro Tem., concur.

1 There seems to be some likelihood of the former in view of the fact the disfavored driver’s car continued on out of the intersection across a lawn at the southeast corner of the intersection, and then continued curving across the lawn and back onto Third Street,' still facing east and stopped some 70 to 80 feet from the point of impact. However, the jury could have accepted the disfavored driver’s explanation of these gyrations.

2 In two seconds, a car traveling 4 miles per hour would cover 11.73 feet.

3 He was at 20, 15, or 10 miles an hour approximately 60, 45, or 30 feet, respectively, from the point of impact.

4 “. . . When it becomes apparent to the favored driver that the disfavored driver will not yield the right of way, a reasonable reaction time must be alloted the favored driver.” Bellantonio v. Warner, 47 Wn.2d 550, 553, 288 P.2d 459 (1955). See also Archibald v. Gossard, supra.