Nance v. Metropolitan Transit Corp.

Hunter, J. The plaintiffs appealed from a summary judgment entered against them by the trial court in a personal injury action. The Court of Appeals, by less than a unanimous decision, affirmed the trial court with respect to the defendant Boswell and his employer, Gray Line Tours, Inc., but reversed the judgment as to the defendant Reeser and his employer, Metropolitan Transit Corporation. The defendant Reeser and his employer now prosecute this appeal under Rule II-2, Supreme Court Rules on Appeal. The plaintiffs have not requested a review of the appellate court order which affirmed the dismissal of their action against the defendant Boswell and his employer. The appellate court opinion, 3 Wn. App. 99, 473 P.2d 207 (1970), states the facts of the case and they are recited from that opinion, at page 100: The Nances were driving a light pickup truck equipped with a camper bed. They were climbing the pass, traveling east, and just a few miles from the Snoqualmie Summit when the accident occurred. Coming downhill from the Snoqualmie Summit toward the Nance pickup were three vehicles. The first was a convertible being driven in a very erratic manner by Lonald Malstrom. He had consumed half a case of malt liquor and was experiencing difficulty in driving. The second vehicle was a bus driven by defendant Lawrence Reeser. Following these two vehicles was another bus driven by defendant Robert Boswell. The bus driven by Reeser had passed the Boswell bus a period of time prior to impact. The accident occurred when the convertible veered across the centerline and one eastbound lane and struck the Nance, pickup on the left rear corner sending it spin [276] ning out of control across the centerline where it collided with the Reeser bus and literally exploded. The Nances brought this action against the drivers of the two buses and their employers. They allege that Reeser operated his bus in a negligent manner resulting in a failure to avoid the collision. It is alleged that Reeser was traveling too fast and following too closely for the conditions then existing and that he failed to heed warnings given by Boswell. The question presented to us is whether the pleadings, affidavits, depositions and answers to interrogatories which were considered by the trial court created a genuine issue of material fact between the plaintiffs and the defendants. If they did, then the trial court must be reversed and the appellate court affirmed. Ferrin v. Donnellefeld, 74 Wn.2d 283, 444 P.2d 701 (1968). In order for a trial court to grant a summary judgment under CR 56(c), it must be shown first that there is no genuine issue as to any material fact and second, that the moving party is entitled to a judgment as a matter of law. We believe the summary judgment entered by the trial court withstands the above test. The undisputed evidence in this case shows the defendant Reeser, in the operation of the Metropolitan Transit bus immediately prior to the accident, was on his own side of the road and that he in no way affected the operation of the Malstrom car ahead. We believe it was purely a fortuitous event that the Metropolitan Transit bus operated by Reeser was at a position on the highway to be struck by the Nance car coming from the opposite direction and crossing the double center line into Reeser’s lane of travel. There was no basis upon which the driver, Reeser, could anticipate or reasonably foresee the collision that resulted in this case. Under these circumstances his negligent driving of the bus, if any, was not a concurrent contributing cause of the accident. The order entered by the Court of Appeals is reversed and the judgment of the trial court is reinstated. Rosellinx, Hale, Stafford, and Wright, JJ., concur.