Doyle v. Kenoyer

Mallery, J. This is an action for personal injuries to plaintiff, with a counterclaim for damages to defendant’s car. The jury found against both causes of action. The defendant appeals from an order granting plaintiff a new trial. Immediately before the collision of respondent’s motorcycle with the rear of appellant’s car, out of which the actions arose, the appellant had been driving south on a straight, dry, level, two-lane road. There was a slight rise in the road approximately - one-fourth mile before the vehicles reached the scene of the accident. As appellant drove past a turnoff road, he noticed a relative signaling to him from a house set well back from the road. He brought his car to a stop, backed it along the west edge of the road, and turned left across the road into the turnoff. Respondent’s motorcycle, approaching from the rear, struck the left rear wheel of appellant’s car as it was leaving the road. The motorcycle left skid marks sixty feet long about one foot from the east edge of the road in the northbound or passing lane. Appellant testified that he checked his rearview mirror before backing his car and found the road empty. He again checked his mirror just before he turned left. At that time, he saw the motorcycle at the top of the rise one-fourth mile to the rear. He then gave a hand signal and turned left into the driveway. He did not hear the motorcycle until the moment of impact. Respondent testified that he observed appellant’s car in the southbound lane and thought it was stopped or moving [913] ahead slowly. As he pulled out to pass the car, it pulled in front of him, and he was unable to avoid hitting it. He observed no hand signal from the car and was not prepared for the turn made by the appellant. Though he admitted he had no horn, he testified that his motorcycle had no mufflers and made a great deal of noise. The trial court ordered a new trial and assigned newly discovered evidence as a ground for doing so. It appears that three days after the trial, a Mr. Haggith called on respondent’s counsel and stated that he “had been a witness to the collision,” and that, at the time of the accident, he had been working inside one of his chicken houses located immediately to the west of the scene of the collision. He stated, in his affidavit, that he would testify he “. . . had been sweeping when his attention was turned to the highway because the automobile involved in the collision had made an emergency stop on the highway causing its tires to make a ‘squealing’ noise. Affiant saw the automobile stop, back up hurriedly, and then quickly cut over to the left across the highway toward a driveway. That said backing and turning by said automobile were done in a rapid and hurried manner and not slowly.” (Italics ours.) Respondent’s counsel had interviewed the people residing near the scene of the accident, but had not discovered that Mr. Haggith had seen the accident because his home was five miles away, and counsel was unaware that Mr. Haggith had been in the chicken house at the time. The evidence of this witness throws a new light upon the collision, and, on the basis of it, the jury could well absolve respondent of contributory negligence on the well-recognized ground that he had been confronted with a sudden emergency. This new and different evidence is not within the purviéw of the rule of Nelson v. Placanica, 33 Wn. (2d) 523, 206 P. (2d) 296, upon which the appellant relies. The trial court did not abuse, its discretion in granting a new trial. Since there is to be a new trial, we think it useful to point out that the trial court did not err in refusing respondent’s requested instruction No. 18. A noisy cut out [914] might well apprise a driver of the presence of a vehicle approaching him from the rear. Such a noise, however, would not indicate an intention on the part of such a driver to do anything in particular. Certainly it is not the equivalent of the statutory signal of an intention to pass and, hence, does not excuse giving such a signal. The order granting a new trial is affirmed. Weaver, C. J., Donworth, and Hunter, JJ., concur.