Barton v. Van Gesen

• Decision Date: 06 May 1916
• Docket Number: 13034.
• Citation: 157 P. 215,91 Wash. 94
• Parties: BARTON v. VAN GESEN.
• Court: Washington Supreme Court

157 P. 215

91 Wash. 94

BARTON v. VAN GESEN.

No. 13034.

Supreme Court of Washington

May 6, 1916

Department 1. Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge.

Action by Celieve Barton, an infant, against J. H. Van Gesen. From a judgment for defendant, plaintiff appeals. Affirmed.

E. J. Lindberg and Pruyn & Hoeffler, all of Ellensburg, for appellant.

E. E Wager, of Ellensburg, for respondent.

MOUNT J.

Action for personal injuries. The plaintiff, a boy ten years of age was injured in the city of Ellensburg on August 18, 1914, by riding a bicycle and striking an automobile driven by the defendant. The plaintiff alleges that the defendant was negligent in approaching a street intersection without sounding a warning, and also in turning to the left side of a street when he should have turned to the right. The defendant for answer denied the allegations of negligence, and alleged contributory negligence on the part of the plaintiff. Upon these issues the case was tried to the court and a jury resulting in a verdict and judgment in favor of the defendant. The plaintiff has appealed.

The facts, upon which there is little or no dispute, are as follows: Pearl street, in the city of Ellensburg, runs north and south. It is intersected by Third street, which runs east and west. At the time of the accident, about 7 o'clock in the evening, the respondent was driving his automobile east on the right hand or south side of Third street. He was approaching Pearl street. His destination was at the northwest corner of Third and Pearl streets. When he came to Pearl street driving on Third, he turned his automobile to the left at or about the manhole at the center of the intersection of those streets, and was going very slowly to his destination at the northwest intersection of those streets. At that time three boys on bicycles were coming toward him, traveling west on the north or right-hand side of Third street, and at that time were about a block away to the east of Pearl street. The first boy, who was a little ahead of the plaintiff, passed to the rear of the respondent's automobile as it was moving to its destination. The plaintiff was not looking forward, but had turned his head to his left, and was looking backward. He ran his bicycle into the rear wheel of the defendant's automobile, and was severely injured.

Upon the trial of the case, without objection, the defendant introduced evidence to the effect that the plaintiff was traveling at a greater rate of speed than six miles per hour. At the close of the evidence the defendant was permitted by the court to amend his answer by pleading an ordinance of the city of Ellensburg which prohibited the riding of bicycles within that district at a greater rate of speed than six miles per hour. The appellant contends this was error. This court has frequently held that an amendment of pleadings is within the discretion of the trial court. Rem. & Bal. Code, § 303; Stoner v. Fryett, 157 P. 213. There is no merit in this contention.

The appellant contends next that the court erred in refusing an instruction with reference to the degree of care required of a child of tender age. The court instructed the jury as follows:

'Of course, all of these things must be done to a reasonable extent and as a reasonably prudent person of the age and capacity of the plaintiff here would naturally be expected to act under similar circumstances. And, should you find that the plaintiff here was not using his faculties or powers of observation in a reasonable way, having in consideration his age and experience, and, if he had been using the same in such manner, the accident would not have happened, or that his failure to use the same contributed in any material degree to the happening of the accident, and these things you believe by a fair preponderance of the evidence, then he cannot recover.'

This instruction was proper...