Adair v. McNeil
| Citation | 95 Wash. 160,163 P. 393 |
| Decision Date | 02 March 1917 |
| Docket Number | 13243. |
| Court | Washington Supreme Court |
| Parties | ADAIR v. McNEIL et al. |
Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.
Action by James B. Adair against Elizabeth A. McNeil and another. From a judgment for defendants, plaintiff appeals. Judgment reversed, and plaintiff awarded new trial.
Hughes McMicken, Dovell & Ramsey and John P. Garvin, all of Seattle for appellant.
John W Roberts, Geo. L. Spirk, and Totten & Totten, all of Seattle for respondents.
The plaintiff, James B. Adair, seeks recovery of damages for personal injuries which he claims resulted to him from the negligence of the defendant Archie McNeil, while driving an automobile as the agent of the defendant Elizabeth A. McNeil, upon a public street of Seattle. In response to a motion made by counsel for the defendants at the close of the evidence upon the trial the superior court rendered a judgment of dismissal in their favor. The motion was made and judgment rendered upon the theory that the evidence would not support a verdict and judgment in favor of the plaintiff, the court deciding as questions of law that the defendants were not guilty of negligence, and that the plaintiff's injuries were the result of his own negligence. From this disposition of the case the plaintiff has appealed to this court.
Respondent Elizabeth A. McNeil was the owner of the automobile in question at the time appellant was injured. Archie McNeil is her son, and was then driving the automobile for the family. The accident occurred near the southeast corner of Melrose avenue and Olive street, which intersect each other at an angle of about 60 degrees; Melrose avenue running north and south, and Olive street running northeasterly and southwesterly. Both streets are paved. Shortly after dark during the evening of the day of the accident appellant was walking across Melrose avenue in a northeasterly direction along or very near the line of the sidewalk on the southerly side of Olive street going from the business district of the city to his home. There was then no street light at this street intersection, so there was only such light as may have been furnished by street lights at other street intersections a half or whole block distant. Appellant had left the sidewalk at the southwest corner of the street intersection and walked across the paved driveway to a point about 10 feet from the sidewalk at the southeast corner of the street intersection when he was struck by the left front lamp of the automobile driven by Archie McNeil, knocked down, and rendered unconscious. He seems to have no memory of what immediately preceded his being knocked down other than that he was walking across the paved driveway of the street in the usual manner of a pedestrian. He may not have been proceeding along a direct line of the southerly sidewalk of Olive street, but if not he was a little to the north thereof towards the middle of Olive street and possibly may have been contemplating crossing Olive street in a diagonal course towards the northerly side thereof. It is plain, however, that he was struck while within the sidelines of both Melrose avenue and Olive street; that is, while in the intersection of those streets. He testified that he did not see any approaching automobile or the lights thereof or hear the sound of any horn or other warning, and was not conscious of the presence of the automobile until almost the instant he was struck. The automobile was driven by Archie McNeil north along Melrose avenue towards Olive street with the view of turning to the right upon Olive street. It is claimed in behalf of respondents that the automobile had not exceeded a speed of 8 miles an hour while proceeding along Melrose avenue within the block immediately to the south of Olive street, and that it was going less than 8 miles an hour when it came to the southerly boundary of Olive street. This we may concede for the purpose of argument. It is also claimed in respondents' behalf that the four front lights of the automobile were on and shining brightly, throwing a light at least a half block forward. It also seems highly probable that this light was sufficiently diffused to light up practically all of the width of the driveway except possibly for a short distance in front of the automobile. Just how far appellant was from the automobile when Archie McNeil, its driver, first saw him or in the exercise of due care should have been him is a question upon which there is ample room for difference of opinion. It seems plain, however, that from the point where appellant left the sidewalk and came upon the paved driveway portion of the street at the southwest corner of the intersection to the point where the automobile struck him was a distance of probably 30 feet or more. No other person or vehicle was at the time upon the driveway portion of the street intersection. At the time in question there was in force in the city of Seattle an ordinance relating to the operation and speed of automobiles upon its public streets, reading in part as follows:
'It shall be unlawful for any person to ride, drive or propel any automobile, * * * along, over or across any street, alley, avenue, boulevard, park, drive or other...
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