Beireis v. Leslie
| Decision Date | 27 January 1950 |
| Docket Number | 30987. |
| Citation | 214 P.2d 194,35 Wn.2d 554 |
| Parties | BEIREIS et ux. v. LESLIE et ux. |
| Court | Washington Supreme Court |
Department 2
Al Beireis and Pearl Beiries, his wife, sued James M. Leslie and Jane Doe Leslie, his wife, for injuries sustained by plaintiff wife when struck by automobile driven by defendant husband.
A judgment for defendants was entered in the Superior Court King County, Malcolm Douglas, J., and the plaintiffs appealed.
The Supreme Court, Hill, J., held that evidence failed to establish that defendant husband was guilty of negligence as matter of law in operation of automobile, or that plaintiff wife could not, as a matter of law, have been guilty of contributory negligence, and further that trial court did not err in giving or refusing of instructions.
Judgment affirmed.
Kennett & McCutcheon, Seattle, Luther C. Martin, Auburn, for appellants.
Eggerman Rosling & Williams, Joseph J. Lanza, Henry E. Kastner Seattle, for respondents.
The jury brought in a verdict for the defendant motorist, hereinafter called L, in a personal injury action brought by a pedestrian, hereinafter called B, and judgment of dismissal followed. B appeals, the basic grounds for the appeal being (1) that the trial court erred in submitted the issue of L's negligence to the jury, B's position that L was guilty of negligence as a matter of law, and (2) that the trial court erred in submitting the issue of B's contributory negligence to the jury, her position being that she could not, as a matter of law, have been guilty of contributory negligence.
These contentions make necessary a somewhat detailed statement of the facts, or what the jury, by the exercise of reasonable inferences, could have found to be the facts.
Primary state highway No. 5, hereinafter referred to as the highway, runs in a northerly and southerly direction and is intersected at an oblique angle by a gravel road known as the Thomas road. Immediately south of this intersection, the highway has a concrete roadway twenty feet in width, with a gravel shoulder on the west side thereof some twelve feet in width. There is a marked school crosswalk about thirty feet south of the intersection, measured along the west edge of the paved portion of the highway, and twenty feet measured along the east edge, the difference being due to the angle at which the Thomas road intersects the highway.
The collision between B and the car driven by L occurred at 7:45 a. m. on October 13, 1947. B had been riding with her husband, her son, and another gentleman in a southbound car, and that car had pulled entirely off the paved roadway onto the gravel shoulder on the west side of the highway directly opposite the marked crosswalk to let her out.
L was driving north and had crossed over to his left (the west) side of the paved portion of the highway for the purpose of passing another northbound car. B's testimony was that she did not start across the paved portion of the highway but was standing on the gravel shoulder on the west side of the highway when she was hit by L's car. L's testimony was that he saw the parked car in which B had been riding but did not see her get out, that the car had moved forward two or three car lengths on the gravel shoulder when he met it and went by it, and that when he first saw B she was three feet out on the pavement and fifty feet in front of him; that he stepped on the brake and swung to the right, but his left front fender hit her; and that, at the moment of impact, she was four or five feet north of the marked crosswalk.
The jury was instructed that if B was hit while standing on the shoulder off the paved portion of the roadway she was entitled to recover, and by its verdict the jury indicated its refusal to accept her version of what had happened.
It is her present contention, stated in the language of her brief, that
B's contention was fully and adequately presented by the jury. It is difficult to conceive of instructions more favorable to a pedestrian than those given in the present case:
(a) The jury was instructed, in substance, that if it believed B's testimony and she was in fact on the shoulder of the highway when hit, she was entitled to recover.
(b) The jury was instructed, in substance, that if B was hit while she was within the boundaries of a marked crosswalk on that portion of the highway lying to the west of the center line of the highway, she had the right of way and it was L's duty to slow down and stop his automobile, if necessary, in order to avoid colliding with her. (We are not approving or disapproving this instruction as being applicable to a marked school crosswalk between the hours of five p. m. and eight a. m. We are merely saying that the instruction became the law of this case, and was as favorable as B could ask.)
(c) The evidence indicated that B may have been four or five feet north of the market school crosswalk when hit; and the jury was instructed that a pedestrian about to cross a public highway where a marked crosswalk is provided need not be exactly and entirely within the boundaries of the marked crosswalk to be entitled to the right of way, and that the pedestrian is entitled to the right of way if in such close proximity to the boundaries of the marked crosswalk that a person acting reasonably and prudently would have a right to step there for the purpose of crossing such public highway. * * *'
B says that under the instruction just referred to she had the right of way even if she was four or five feet north of the crosswalk when hit. With that we cannot agree, as, under the instruction, when a pedestrian goes beyond the limits of the crosswalk, whether or not he or she still has the right of way becomes a question for the jury and depends upon whether the jury believes that a person acting reasonably and prudently would go that distance beyond the limits of the crosswalk. We see no peculiar situation which justifies B's having been four or five feet or any number of feet north of the marked crosswalk; certainly we cannot and will not say that, as a matter of law, she had the right of way because she was within four or five feet of the crosswalk; at best it was a jury question.
If we assume, however, that B was on the highway and had the right of way, it does not follow that L was negligent or that B was free of contributory negligence. L was not necessarily negligent in being on his left (the west) side of the paved portion of the highway if he was there for the purpose of passing another car. Rem.Rev.Stat. Vol. 7A, § 6360-75. Whether or not, prior to the collision, he had such clearance that he should have resumed his position on his right (the east) side of the paved portion of the highway was a question for the jury. Whether he could or should have seen B on the highway or about to start across it in time to avoid hitting her was likewise a question for the jury. The negligence of L was properly submitted to the jury under proper instructions as to his duty to maintain a proper lookout ahead and a proper lookout for pedestrians at crosswalks, and to drive to the right of the center of the highway except in the exercise of care while overtaking and passing another vehicle driving in the same direction.
Even if B was in or near the crosswalk when hit and had the right of way, it is evident that the question of whether she used reasonable care in observing traffic conditions or walked heedlessly and directly into the path of L's oncoming car, was likewise a question for the jury, on the issue of contributory negligence. The jury could have inferred, from the fact that B was three feet out on the pavement when L first saw her, that she had come suddenly off the shoulder and onto the pavement. There was nothing in B's testimony to meet that inference because she said she never went onto the pavement, and that the jury did not believe. A marked crosswalk is not a sanctuary into which a pedestrian way rush and thereby be absolved from any negligence. Turnquist v. Rosaia Bros., Inc., 196 Wash. 434, 83 P.2d 353; Knight v. Pang, Wash., 201 P.2d 198.
B's exceptions to several instructions submitting the issue of her contributory negligence to the jury are based on the idea contained in her requested instruction No. 18, which reads as follows: ...
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