Broze v. Randall

Hale, J. Two automobiles collided at an uncontrolled intersection in Seattle, November 3, 1962. Plaintiff, the disfavored driver, says that he could not be deemed contribu-torially negligent as a matter of law in failing to yield the right of way because the defendant, approaching him from his right, was coming up a very steep hill. The steep hill, he contends, diminished his responsibilities under the right-of-way statute, and left the question of contributory negligence to the jury. It was about 7:30 p.m. and dark, when plaintiff, driving his yellow, 1961 Porsche automobile, slowly north on 19th Street South in Seattle, with his wife as a passenger, approached the South Hanford Street intersection. A traffic sign facing him at the intersection cautioned all northbound traffic on 19th Street South to “Slow to 10 miles per hour.” Plaintiff and his wife testified that plaintiff stopped before entering the intersection, looked to his left and right and then proceeded slowly. As the Porsche passed the center of the intersection, it was struck by the defendant’s car coming up the steep hill from the right. Plaintiff said that he saw neither the defendant’s vehicle coming up the hill nor its headlights. Defendant, describing the accident, said that he drove up South Hanford Street — a very steep, cleated hill — toward the 19th Street intersection, in a white 1955 Ford sedan. He roughly estimated his speed at less than 25 miles per hour but not to exceed 35 miles per hour. He conceded that his car had faulty brakes, but believed that they took hold when he applied them at first sight of the yellow Porsche which suddenly crossed in front of him from his left in the intersection. — 543 — Defendant now appeals the judgment entered on a verdict for the plaintiff, presenting through two assignments a solitary claim of error that the trial court erred in failing to find that the plaintiff was contributorially negligent as a matter of law in failing to yield the right of way. Both 19th Street South, on which plaintiff drove north that night, and South Hanford Street, on which defendant was driving west, are 25 feet wide, forming a 25-foot square at their intersection. The two streets are paved and long established, and, save for the steepness of South Hanford, represent at their junction an ordinary uncontrolled intersection. It was dark and each car had its headlights on. Plaintiff and his wife, returning to the scene several days after the accident, made a number of measurements with a tape measure. Plaintiff testified that his Porsche stood 51 inches high from road to roof; that its axles rested on centers 13 inches above the pavement and that plaintiff driver sat at the wheel at a height which placed his eye level 42 inches above the pavement when driving. Basing their testimony on the measurements, they said that, when seated in the Porsche within the intersection, they could see the roof of defendant’s car — a 1955 white Ford — for a distance of 102 feet down Hanford hill in daylight. Plaintiff testified too that, from the point where he had stopped to look to his right before going through the intersection, he would be able to see the lights of an approaching car at night for an estimated distance of 252 feet down the South Hanford hill. Did the plaintiff fail as a matter of law to yield the right of way to a vehicle approaching from his right up a steep hill on South Hanford at about, or slightly in excess of, the maximum legal speed of 25 miles per hour? Plaintiff argues that the circumstances of topography, plus defendant’s possible speed in excess of the maximum legal rate, in part relieve him of the onus of contributory negligence and make it a jury question. Because of the steepness of South Hanford, he contends, it was for the jury to decide whether he entered the intersection in the reasonably prudent belief — 544 — that he had a fair margin of safety as to any vehicles coming up the hill from his right. In this case, however, we do not find evidence of any circumstance which relieved plaintiff of his duty to yield the right of way to defendant at that time and place. Whether the grade of South Hanford was steep, slight or level does not affect the application of the right-of-way rule on a paved, long-established street. How can it be said that the defendant driver, whose car could be seen by the plaintiff in daylight for 102 feet and whose lights at night for 250 feet in driving up a steep hill slightly in excess of the speed limit, so operated his car as to “create a deception tantamount to an entrapment,” or did anything to “lure a reasonably prudent driver into the illusion that he has a fair margin of safety in proceeding into the intersection?” Mondor v. Rhoades, 63 Wn.2d 159, 385 P.2d 722 (1963). That South Hanford was a very steep hill provides no basis for removing this case from the rules of Mondor. And evidence that defendant’s car had faulty brakes and was moving up the hill at or possibly faster than the speed limit, while having a bearing on defendant’s negligence, did not, under these circumstances, entrap plaintiff by luring him into the intersection. Defendant’s negligence is not an issue now, it having been fully resolved against him earlier. The only issue is that of plaintiff’s contributory negligence in failing to yield •the right of way. Even if it were established that defendant drove his car up the steep hill in excess of the lawful maximum speed, it could not be said, under the circumstances proved, that he operated his vehicle in such a manner as to instill in the disfavored driver on the left, an illusion that he had a fair margin of safety in proceeding through the intersection. The steepness of the hill and the favored driver’s speed, even if somewhat in excess of the legal limit, did not dissipate plaintiff’s obvious contributory negligence in failing to yield the right of way. As we have noted, the hill was a very steep one, but not so steep as to enable a driver of ordinary prudence in the — 545 — city of Seattle reasonably to claim surprise that an automobile would be traversing it. South Hanford was but one of many well-established, regularly-used, steep streets and ways frequently encountered by automobile drivers in the cities of the Pacific Northwest. Thus, the steepness of a readily negotiable hill does not operate to work a dilution or diminution of duty resting upon the disfavored driver under the right-of-way statute. Indeed, the warning sign and the steepness of the hill on the right combined to require a high degree of vigilance from the plaintiff. In this connection, one should note the categorical language in which the statute is phrased, “Every operator . . . shall look out for and give right of way to vehicles on his right.” (Italics ours.) RCW 46.60.150 (now RCW 46.61.180). Although we decided not to make the right of way absolute in Mondor, supra, even though the statute admits of such a construction, we did emphasize that the right of way is a very strong rule, subject only to the exception of a deception tantamount to an entrapment — an entrapment sufficiently deceptive to lure a reasonably prudent driver into believing that he has a fair margin of safety in proceeding into the intersection. Because defendant’s car was there to be seen, coming from the right under no unusual condition or circumstances other than the hill — a commonplace situation in Seattle— plaintiff had no fair margin of safety in entering the intersection. As we said in Novis v. Tipton, 63 Wn.2d 473, 387 P.2d 737 (1963), we will not isolate the fair margin of safety rule from its context, insulate it against the application of physical facts and laws, and substitute the reasonably prudent-man test for the standard of care imposed by the statute. The line of cases relied upon by plaintiffs are distinguishable upon their facts, e.g., time, distance, speed, and visibility. In any event, they are of limited and doubtful efficacy in the light of our decisions in Chavers v. Ohad, 59 Wn. (2d) 646, 369 P. (2d) 831, and Mondor v. Rhoades, ante p. 159, 385 P. (2d) 722. — 546 — Plaintiff’s situation here comes directly within our statement in Sanders v. Crimmins, 63 Wn.2d 702, 706, 388 P.2d 913 (1964), where we said: A disfavored driver’s obstructed view of a favored vehicle does not constitute deception. Shultes v. Halpin, 33 Wn. (2d) 294, 205 P. (2d) 1201; King v. Molthan, 54 Wn. (2d) 115, 338 P. (2d) 338. It is the duty of a disfavored driver approaching an obstructed intersection to make his observations from a point at which he can clearly observe, not from a point back from the intersection where his view is materially impaired. Delsman v. Ber-totti, 200 Wash. 380, 93 P. (2d) 371. Obstructions to view and adverse road and atmospheric conditions intensify, rather than diminish, the attentiveness and vehicular control required. The fact that a favored vehicle is unlighted, although otherwise visible, does not relieve the disfavored driver of his obligation to maintain a proper and effective lookout and to yield the right of way. The defense of deception is not open to one who did not see the favored vehicle until the instant before collision. In Gray v. Pistoresi, 64 Wn.2d 106, 390 P.2d 697 (1964), we held so heavy upon the disfavored driver is the duty to yield the right of way to the favored driver that a sudden estimated increase in the favored driver’s speed from 50 to 70 miles per hour did not give defendant any basis in law for claiming a fair margin of safety, citing Mondor v. Rhoades, supra, and Charlton v. Baker, 61 Wn.2d 369, 378 P.2d 432 (1963), with approval. Shortly thereafter, in Ward v. Zeugner, 64 Wn.2d 570, 392 P.2d 811 (1964), we said: The conclusion is inescapable that defendant driver did not maintain the lookout required of one about to execute a left turn upon an arterial. Defendants’ claim of entrapment must fall to the oft-repeated statement that a disfavored driver cannot be deceived by that which such driver does not see. Defendants’ counterclaim upon plaintiff’s motion for directed verdict should have been dismissed and the jury instructed that defendant driver was guilty of negligence as a matter of law. Accord: Worthington v. Caldwell, 65 Wn.2d 269, 396 P.2d 797 (1964) Archibald v. Gossard, 65 Wn.2d 486, 397 P.2d 851 (1965). — 547 — Plaintiff being contributorially negligent as a matter of law in failing to yield the right of way, we think this case falls within the precisely delineated statement pertaining to the right of way set forth in Sanders v. Crimmins, supra, that a disfavored driver’s obstructed view of a favored vehicle does not constitute deception. The record establishes as a matter of law plaintiff’s failure to yield the right of way to a vehicle approaching on his right. Accordingly, the judgment will be reversed and the case dismissed. Hill, Weaver, Rosellini, and McGovern, JJ., concur.