Carlson v. Ahl, 27738.

• Decision Date: 05 February 1940
• Docket Number: 27738.
• Parties: CARLSON et ux. v. AHL et ux.
• Court: Washington Supreme Court

98 P.2d 1081

2 Wn.2d 545

CARLSON et ux. v. AHL et ux.

No. 27738.

Supreme Court of Washington

February 5, 1940

Department 2.

Action by John Carlson and wife against Oscar Ahl and wife to recover damages for the death of Melvin Carlson plaintiffs' son. From a judgment on a jury's verdict for defendants, plaintiffs appeal.

Affirmed.

Appeal from Superior Court, Mason County; John M. Wilson, judge.

J. W Graham, of Shelton, for appellants.

Doane Brodie and Charles T. Wright, both of Shelton, for respondents.

BEALS, Justice.

Plaintiffs John and Anna Carlson, residing near the Olympic highway, in Mason county, between Shelton and Hoodsport, were the parents of Melvin Carlson, who, April 21, 1938, was five years and eleven months of age. About five o'clock on the afternoon of April 21st, Melvin was playing around the house occupied by Mr. and Mrs. C.J. Reader, located on the west side of the Olympic highway, near the Carlson home. Defendants, Oscar and Alice L. Ahl, on the day referred to, were driving their automobile in a northerly direction along the highway, Oscar Ahl at the wheel. As the car neared the Reader residence, Mr Ahl noticed another automobile approaching from the north along the highway. At the same time, Melvin Carlson undertook to cross the highway from west to east, and as he reached the eastern edge of the pavement, was struck by defendants' automobile, and so severely injured that he died within a few hours thereafter.

Plaintiffs sued defendants, seeking damages on account of the death of their son, alleging that defendant driver had been negligent in that he neglected to have the car under control, and to maintain a careful, or any, observation for other persons using the highway; that he negligently failed to stop the car, or to turn it aside, to avoid the collision. Defendants denied negligence on their part, and affirmatively pleaded contributory negligence, both on the part of the boy and his parents.

The affirmative allegations of the answer having been denied by the reply, the action was tried to a jury, which returned a verdict in favor of the defendants. Plaintiffs seasonably moved for a new trial, upon the ground 'that there is no evidence or reasonable inference from the evidence to justify the verdict, and that it is against the law.' The trial court, having denied the motion for a new trial, entered judgment upon the verdict, dismissing the action. From this judgment, plaintiffs have appealed.

Error is assigned only upon the order of the court denying appellants' motion for a new trial, and upon the entry of the judgment on the verdict. No trial error is assigned, appellants contending only that upon the evidence, it should be held that the trial court erred in denying appellants' motion for a new trial.

The trial court instructed the jury that a child under six years of age could not be held guilty of contributory negligence, and that if the jury found that at the time of the accident Melvin was less than six years of age, the defense of contributory negligence on the part of the child was not available to respondents. The court also instructed the jury that if they found, as a fact, that Melvin's parents had at various times warned him of the danger of crossing the highway, and instructed him not to do so, and that on the day of the accident, he disregarded these instructions, negligence could not be imputed to appellants, and that their recovery could not be defeated by reason of any alleged contributory negligence on their part, if the jury should find that they would otherwise be entitled to a favorable verdict. These instructions became the law of the case, and both parties agree that upon the facts all questions of contributory negligence were, by the trial court, withdrawn from the jury's consideration. In view of our opinion on the questions presented on appellant's appeal, certain matters argued by respondents in connection with appellants' alleged contributory negligence need not be discussed.

The jury, then, was called upon to determine whether or not respondents had been negligent, and if so, whether or not such negligence was a proximate cause of the child's death.

The accident occurred during the late afternoon; the day was clear, it was still daylight, and visibility was good. The road was level and straight, and automobiles were permitted to travel at a rate not exceeding fifty miles per hour. Appellants argue that the negligence of respondent driver 'was not only proven beyond the possibility of dispute, but that it was definitely admitted by defendant Oscar Ahl from the witness stand.'

Appellants did not request the trial court to instruct the jury to return a verdict in favor of appellants, leaving to the jury only the amount of damages. Appellants contend only that in denying their motion for a new trial, the trial court erred, and that this court should hold that it so erred, and reverse the judgment appealed from. The denial of a motion for a new trial may be reviewed on appeal for error of law, or abuse of judicial discretion.

The Reader home stands on ground a little above the highway, and nearby is a private roadway leading to the highway at a downgrade. From the evidence, it appears beyond question that Melvin, after playing with the Reader children, decided to cross the highway, at an angle toward the north. Respondent Oscar Ahl testified that he did not see the child until the latter reached the margin of the paved portion of the highway. He also stated that he was proceeding between thirty-five and forty miles an hour; that he was observing the car which was approaching along the highway; that as soon as he saw Melvin, he applied his brakes, and that the car partially left the pavement; that the child almost passed in front of the car, but was struck by the right headlight when the car had almost stopped; and that the car did not go more than a few feet after striking the child.

The witness also testified that he was familiar with that portion of the highway, and knew that it was the center of a residence community, and that watchfulness was required in driving through such a district. The evidence indicates that the Ahl car skidded forty-seven feet Before striking the child.

Mr. Ahl testified that he was carefully observing the highway, but stated that he was not observing the terrain off the highway to his left, and that he probably could have seen Melvin Before the latter reached the pavement, had he looked at the adjoining property. He further testified that he estimated that when he saw Melvin he was about fifty feet from him, and that had he sooner seen the child approaching the highway, he could have stopped his car in time to avoid the accident.

Appellants argue that Mr. Ahl might have avoided the child by turning...