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Niven v. MacDonald

September 21, 1967

CLEMENT J. NIVEN ET AL., PLAINTIFFS,
v.
JOHN MACDONALD ET AL., DEFENDANTS. ERVIN LUDWICK ET AL., APPELLANTS, V. JOHN MACDONALD ET AL., RESPONDENTS



Appeal from a judgment of the Superior Court for Snohomish County, Nos. 80618, 81479, Thomas R. Stiger, J., entered May 21, 1965.

En Banc. Hill, J. Finley, C. J., Weaver, Rosellini, Hunter, Hamilton, and Hale, JJ., concur. Donworth, J., dissenting.

Author: Hill

Two cases arising out of an automobile accident were consolidated for trial. Pending the hearing before this

court on appeal, the Niven v. MacDonald and Ludwick*fn1 action was settled and the appeal dismissed. Therefore, we are concerned only with the action between the plaintiffs-appellants (Mr. and Mrs. Ervin Ludwick) and the defendants-respondents (Mr. and Mrs. John MacDonald). The drivers of the respective vehicles involved in the accident were Mrs. Ludwick and Mr. MacDonald, and they will be referred to herein as though they were the only parties to the action.

Mr. MacDonald undertook to pass a column of four cars traveling east on a 2-lane highway. Mrs. Ludwick's auto was the leading car in the column. As she undertook to make a left turn into a private driveway, her car was struck by the MacDonald vehicle. A drawing of the accident scene is reproduced here for illustrative purposes.

Mrs. Ludwick instituted this action to recover for personal injuries and property damage sustained as a result of the collision. At the close of the plaintiff's case, the trial court dismissed the action, holding that she was contributorily negligent as a matter of law and that such negligence was a proximate cause of the accident. The plaintiff has appealed, and the only issue is whether she was contributorily negligent as a matter of law.

The trial court based its ruling upon two statutory violations: RCW 46.60.040 (now codified under 46.61.110), and RCW 46.60.120(4) (a) (now codified under 46.61.305(1)). The latter provides that:

No person shall turn a vehicle . . . to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.

The plaintiff testified that she signalled to make a left turn into a private driveway and her signals were seen by

the drivers of the two cars immediately behind her. She further stated:

A. . . . And I began to slow down, and I looked ahead and saw there were no cars coming from ahead of us, and then I looked in my rear view mirror and I saw there was a car behind me, a safe distance behind me, so I knew he was all right, and then just before I was going to turn -- I slowed down to about, oh, between five and ten miles an hour to make the turn because it is a real sharp turn, and then I looked in my rear view mirror and I didn't see any cars behind me, and so I just went ahead into the turn. . . . Q. You looked forward to see that the highway was clear? A. Yes. Q. Looked in your rear vision mirror? A. Yes. Q. Before you did that you saw a car behind you? A. Yes. Then I looked back again in the rear view mirror on the side of the car. Q. The side rear view mirror? A. Yes. Q. And you didn't see any cars approaching? A. I didn't see any car, no.

Q. Do you have a specific recollection of looking into your side view mirror? A. Right before I went in to the turn, yes, sir.

Q. . . . Can you give us an estimate of how much time elapsed between when you looked in your side view mirror and when you actually commenced your turn? A. Well, it's hard to say, but I am sure it was at least two seconds up to probably about five seconds, but it is hard to say. Seconds are kind of hard to estimate.

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[EDIT ]

It is the plaintiff's position that her conduct met the required standard of care (reasonable safety) imposed upon her by RCW 46.60.120, and on appeal it is urged that what constituted reasonable safety was a question for the jury, not the trial court, to decide.

In making its determination the trial court stated:

Now, when does the law require her to make that last look? Is it seven seconds before she turned? I appreciate that counsel's illustration is that if she had looked she would not have been able to see this automobile; but if it was five seconds before she looked, she would have been able to see the automobile, because it was there to be seen, there isn't any doubt about that. If she had looked

immediately prior to her making this turn, she would have seen an overtaking vehicle. And if she had seen the overtaking vehicle, then according to 46.60.040 she was required to keep on the extreme right hand of the public highway until such vehicle had passed her. She did not do that. She ...


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