Allen v. Hart

• Decision Date: 23 December 1948
• Docket Number: 30671.
• Citation: 32 Wn.2d 173,201 P.2d 145
• Parties: ALLEN v. HART et al.
• Court: Washington Supreme Court

201 P.2d 145

32 Wn.2d 173

ALLEN v. HART et al.

No. 30671.

Supreme Court of Washington

December 23, 1948

Department 1

Action by Gladys Allen, as administratrix of the estate of Claude Eugene Allen, deceased, against Dean E. Hart and Jane Doe Hart, his wife, and the Seattle Urban League, a foreign corporation, for wrongful death of plaintiff's intestate as the result of a collision with an automobile driven by defendant, Dean E. Hart. From the judgment, defendants appeal.

Judgment reversed, and cause remanded for new trial.

Appeal from Superior Court, King County; Clay Allen, Judge.

Skeel McKelvy, Henke, Evenson and Uhlmann and Frederick V. Betts all of Seattle, for appellants.

Brightman and Roberts, of Renton, for respondent.

HILL Justice.

Claude Eugene Allen died as the result of a collision with an automobile driven by Dean E. Hart. A suit by the administratrix of Allen's estate was commenced under the provisions of our wrongful death statute, Rem.Rev.Stat.§§ 183 and 183-1. A substantial verdict was returned against Mr Hart and his wife. From a judgment entered on that verdict, the Harts have appealed.

The respondent's theory of the case, supported by disinterested witnesses, was that Mr. Allen was crossing the street on an unmarked crosswalk when he was struck and fatally injured. The appellants testified that Mr. Allen was not in the crosswalk when he was hit. The locus of the collision was the most important single fact in the case, for upon it depended the vital question of who had the right of way.

The trial court properly instructed that if Mr. Allen was on the crosswalk he had the right of way, but refused to give an instruction to the effect that if he was crossing the street at other than the crosswalk, it was his obligation to yield the right of way to all vehicles on the roadway. This denied the appellants the right to have their theory of the case presented to the jury and was prejudicial error.

The respondent's only attempted justification of the court's failure to instruct upon the appellants' theory of the case was that (a) Mr. Allen having died without regaining consciousness following his injury, there was a presumption that he exercised due care for his own safety; (b) all the disinterested testimony was that he was in the crosswalk when he was hit; and (c) the interested testimony of the appellants that Mr. Allen was not in the crosswalk was not sufficient to remove the presumption of due care. Which is patently fallacious. There is no presumption of due care in this case, numerous witnesses, interested and disinterested, having testified as to how and where the collision occurred.

'Presumptions are indulged in only to supply facts, and do not arise where the facts are known.

'Presumptions must be based on some necessity, and the court will not go into the domain of presumptions where direct proof can be obtained.' 31 C.J.S. Evidence, § 114, page 723.

As pointed out in Morris v. Chicago, M., St. P. & P. R. Co., 1 Wash.2d 587, 97 P.2d 119, 100 P.2d 19, the presumption of due care is based primarily upon the fact that there is no evidence to show what the deceased did or did not do immediately preceding an accident, and, when disinterested witnesses testify as to the actions of the deceased up to the time of the accident, the reason for the presumption ceases to exist, and it entirely disappears. See, also, Sweazey v. Valley Transport, Inc., 6 Wash.2d 324, 107 P.2d 567, 111 P.2d 1010.

In the present case, there was a clear-cut issue of fact. The jury might well have believed respondent's disinterested witnesses and disbelieved the appellants, but the latter had the right to have their theory of the case presented under proper instructions. The rule is well stated in 2 Bancroft's Code Practice and Remedies 1969, § 1497: '* * * Where the parties proceed upon different theories the court should, if requested, give instructions applicable to both theories, even though such theories are wholly inconsistent. The right to have one's theory presented is not affected by the fact that there is countervailing testimony, by the fact that the judge might deem the evidence inadequate to support such a view of the case were he the trier of the facts, or by the fact that the law is, in a general way, covered by the instructions given.' See Lubliner v. Ruge, 21 Wash.2d 881, 153 P.2d 694.

We have discussed first that error from which it is evident that this case must be sent back for a new trial; and we will now discuss two other errors which might not, in themselves, have been sufficiently prejudicial to warrant a new trial but which should be avoided if the case is tried again (1) The wife of the decedent was permitted to testify how much time she lost from her employment and what her rate of compensation was. Manifestly, this was error. Respondent tacitly admits the error but says it was not prejudicial because, if the jury followed the court's instruction on damages, it could not have considered any loss of compensation by the...