Benson v. Anderson

• Decision Date: 20 March 1924
• Docket Number: 18109.
• Citation: 223 P. 1063,129 Wash. 19
• Court: Washington Supreme Court
• Parties: BENSON v. ANDERSON.

223 P. 1063

129 Wash. 19

BENSON v. ANDERSON.

No. 18109.

Supreme Court of Washington

March 20, 1924

Department 2.

Appeal from Superior Court, Asotin County; Miller, Judge.

Action by G. W. Benson against Ed Anderson. Judgment for plaintiff and defendant appeals. Reversed, with instructions.

Pemberton J., dissenting.

C. H Baldwin, of Asotin, for appellant.

Fred E. Butler, of Lewiston, Idaho, and E. J. Doyle, of Clarkston, for respondent.

FULLERTON J.

The respondent, Benson, while crossing the interstate bridge extending over the Snake river between the city of Lewiston, Idaho, and the city of Clarkston, Wash., was injured by an automobile driven by the appellant, Anderson. In the action from which this appeal is prosecuted there was a verdict of the jury in his favor and a judgment upon the verdict.

The bridge mentioned is some 1,500 feet in length and some 28 or 30 feet in width. It is divided into two passageways by a railing extending the full length of the bridge, one of which ways is reserved for vehicles of all kinds, and the other for footmen. The bridge as constructed is higher in the center than it is at either end. The respondent just prior to his injury started across the bridge from the Idaho side riding a bicycle. He rode the bicycle, according to his statement, part way up its ascent, when, as it 'got to pulling too hard,' he dismounted and proceeded to walk the remainder of the way, walking at the side of his bicycle and pushing it. After dismounting he crossed over to the right side of the bridge and proceeded on that side past the center of the bridge and part way down the descent on the Washington side, when, as before stated, he was struck by an automobile overtaking him driven by the appellant.

The assignments of error discussed by the appellant in his brief question (1) the rulings of the court denying his motion for a nonsuit made at the conclusion of the plaintiff's evidence; (2) the refusal of the court to sustain his challenge to the sufficiency of the evidence made at the close of the evidence; and (3) its refusal to sustain his motion for judgment notwithstanding the verdict.

The first of the assignments needs no extended discussion. While the time of the accident was between the hours of 8 and 9 o'clock at night, the bridge was fairly well lighted with artificial lights, so that an object of the size of a man could be seen for a considerable distance ahead, and it was a just inference for the jury to draw that, had the appellant exercised the usual and ordinary vigilance, he could have discovered the presence of the respondent in his path in time to avoid him. It is true there were a number of automobiles on the side of the bridge going in the opposite direction, and that the lights from these made it difficult to observe objects in front of the appellant. But this only called for a greater care on his part; it did not warrant him in proceeding in a way dangerous to others rightfully upon the highway, although not warranting a finding that his conduct was a wanton disregard of the rights of such others. There was, therefore, in our opinion, sufficient evidence upon which the jury could find that the appellant was negligent.

But we think the remaining assignments are better founded. The Legislature has enacted certain 'rules of the road' for the government of the conduct of persons using the highways of the state, and has declared that it shall be the duty of every person to observe them. Session Laws 1921, c. 96, § 28; Rem. Comp. Stat. § 6340. Subdivision 7 of these rules reads as follows:

'Pedestrians on the public highways between the period from one-half hour after sunset to one-half hour before sunrise shall travel on and along the left side of said highway, and the pedestrians upon meeting an on-coming vehicle shall step off the traveled portion of the highway.'

In Johnson v. Heitman, 88 Wash. 595, 153 P. 331, we said that this court 'is definitely committed to the rule that 'a thing which is done in violation of positive law is in itself negligence,' in the absence of pleading and proof of such peculiar facts as would tend to justify the violation.' A number of cases are cited in the opinion to sustain the proposition,...