Zahn v. Arbelo

Donworth, J.

(concurring in the result)—While I am in . agreement with the result reached by the majority and with the rules of law which are stated, I am more than somewhat troubled by what seems to be implied in the opinion.

In order to clarify my position, I feel that a more complete statement of the pertinent facts than is made by the majority is necessary.

The collision between appellant and respondent occurred at a point where Elm Street (an arterial protected by stop signs) and Third Street intersect in the town of Grand-view, Washington.

A hedge, located on the north side of, and parallel to, Third Street, obstructs the view of a driver proceeding south on Elm, and would prevent him from seeing a vehicle approaching Elm from the west on Third until that vehicle was within about 30 feet of the stop sign.

On the afternoon of Friday, November 22, 1963, respondent, employed by the city of Grandview as a police officer, was proceeding south on Elm in a marked police car. He observed two women in an automobile, traveling very slowly in a southerly direction on Elm directly ahead of his own car. The two women turned across the east lane of Elm and stopped off the pavement headed in the wrong direction. Respondent briefly continued his observation of the women in the rear view mirror “to see what they were going to do.” He then looked to the front just in time to see appellant’s pickup truck proceeding east on Third Street into the intersection ahead of him. He was unable then to avoid the collision, and the pickup struck the police car on the right rear door.

The actions of appellant, clearly the disfavored driver, are very much in dispute. According to respondent, when he first saw appellant’s pickup truck, it was proceeding into *640 the intersection at a speed of 25-30 miles per hour, having failed to stop at the stop sign on Third.

According to appellant, however, he stopped at the stop sign, looked in both directions, and, seeing no cars approaching for at least 3 or 4 blocks to the north, proceeded across the intersection. He had just shifted into second gear, having attained a speed, according to his “best” estimate, of somewhere between 4 and 8 miles per hour, when respondent’s police car struck the front end of his pickup truck with its right rear door.

The sole issue before this court is whether the trial court erred in removing the issue of respondent’s contributory negligence from the jury’s consideration. The theory on which the trial court’s ruling and this court’s affirmance of that ruling are based is that, even had respondent been keeping a proper lookout, he could not have avoided the collision.

Respondent’s recovery, or the bar to his recovery, therefore, rests on complex calculations relating to the distances an automobile will be considered to have traveled in a given length of time, or the distance in which a moving automobile may be stopped. I cannot agree with this method of deciding these cases.

There is no equivocation in the duties imposed by the legislature upon the disfavored driver at a controlled intersection. See RCW 46.61.190 (2). He shall stop, and he shall yield the right of way to the favored driver. His failure to comply with these duties renders him negligent as a matter of law, and liable for all damages proximately caused by his wrongful action.

However, since Martin v. Hadenfeldt, 157 Wash. 563 , 289 Pac. 533 (1930), this court has effectively imposed certain duties upon the favored driver by declaring that the right of way, given the favored driver by the legislature, was “relative” and not absolute.

From this proposition have come several decisions in which we barred recovery on the part of the favored driver on the ground that he failed to exercise reasonable care for *641 his own safety, i.e. was contributorily negligent. See Harris v. Fiore, 70 Wn.2d 357 , 423 P.2d 63 (1967); Owens v. Kuro, 56 Wn.2d 564 , 354 P.2d 696 (1960); Sebastian v. Rayment, 42 Wn.2d 108 , 254 P.2d 456 (1953).

The majority, in the present case, imply that, had Zahn been able to see the impending violation of his right of way by Arbelo in time to have stopped and avoided the collision, he would have been barred from recovery by his contributory negligence in failing to maintain a proper lookout. With this implication, I disagree. I would overrule cases giving support to such a doctrine.

Such a ruling, it seems to me, abolishes the statutory right of way and reverts to a race-for-the-intersection situation. Under such a rule of law, the disfavored driver, notwithstanding the statutory advantage given the favored driver, may, with impunity, proceed into the path of the oncoming favored driver so long as the favored driver should be able to stop in time, or otherwise avoid a collision. No such rule was contemplated by the legislature, and no such rule should be followed by this court.

I would abandon rules of “relative” rights of way which have developed from Martin v. Hadenfeldt, supra, and, instead, bar recovery by the favored driver in only two circumstances; i.e. the true deception situation as described in Mondor v. Rhoades, 63 Wn.2d 159, 167 , 385 P.2d 722 (1963), where the actions of the favored driver “deceive the reasonably prudent driver on the left to such an extent as to entrap him”; and in cases involving last clear chance. See Barrett v. Inglin, 46 Wn.2d 317 , 281 P.2d 236 (1955), and cases cited therein.

By such a ruling, this court would give substance to the rule, stated in the majority opinion, that “The favored driver on an arterial protected by a stop sign has one of the strongest rights of way which the law allows,” and would return these right-of-way cases to their proper perspective.

For the reasons stated above, I concur in the result of the majority opinion.

*642 Hale, J. concurs with Donworth, J.