Carraway v. Johnson
| Decision Date | 07 November 1963 |
| Docket Number | No. 36429,36429 |
| Court | Washington Supreme Court |
| Parties | John M. CARRAWAY and Elizabeth Carraway, husband and wife, Appellants, v. James V. JOHNSON, Respondent. |
William Eric Rohrs, Tacoma, for appellants.
Lycette, Diamond & Sylvester, Earle W. Zinn, Seattle, for respondent.
Mr. and Mrs. Carraway (plaintiffs-appellants) instituted this action for the recovery of general and special damages arising from the death of their two and one-half year old son, Robert, who was killed when he was struck by a pickup truck owned and operated by Mr. Johnson (defendant-respondent). The jury returned a verdict in favor of the defendant, and the trial court entered judgment accordinngly.
The accident occurred in Tacoma, Washington, on South 74th Street, a forty-five-foot wide paved arterial, having a posted speed limit of thirty-five miles per hour. Mr. Johnson was driving in a westerly direction on South 74th at approximately thirty miles per hour; it was early evening, but still daylight, and the visibility was good. He noticed some children playing on the north side of the street when he was still one-half block away, and he slowed his truck. Johnson turned his gaze from the children just in time to observe Robert Carraway (the decedent) in the center of the street, about fifty feet in front of defendant's truck. He immediately applied his brakes, but made fatal contact with the child, after skidding some twenty feet. None of the witnesses, including Johnson himself, was able to say with certainty whether the child had been in the street in a sufficient time for johnson to have seen him in the exercise of ordinary care, or whether the child had darted into the street from concealment only an instant before Johnson saw him.
One witness, standing near the scene, observed the boy hiding behind a telephone pole shortly before the accident, but he did not see the actual impact or the events immediately preceding it. Another witness saw the impact from a passing car. Her testimony indicated that the boy was in view for a sufficient interval so that Johnson could have observed him and stopped his car had he been keeping a proper lookout. This same witness, however, had signed a written statement immediately following the accident in which she said:
Generally, such statements would be hearsay and admissible only for impeachment purposes. The particular statement was admitted in evidence and read to the jury without any objection by counsel. Hearsay evidence, once admitted, can properly be considered both by the jury and by this court on appeal. Callen v. Coca Cola Bottling, Inc. (1957), 50 Wash.2d 180, 310 P.2d 236. We, therefore, are presented with a case where the evidence concerning the actual circumstances of the accident is conflicting, but is sufficient to support a jury's finding in accord with the defendant's theory that the boy darted into the street from concealment.
Since the law of this jurisdiction seems to preclude the possibility of contributory negligence on the part of a child of Robert Carraway's tender years, Von Saxe v. Barnett (1923), 125 Wash. 639, 217 P. 62, and there was no allegation of contributory negligence on the part of the plaintiff parents, the only issue to be resolved in the instant case is whether Mr. Johnson was negligent, and whether such negligence, if any, was the proximate cause of the accident. The jury verdict for the defendant necessarily forecloses this question, indicating that the jury found either that Johnson did keep a proper lookout or that no ordinary care on the part of Johnson would have prevented the accident (presumably because the boy darted into the path of the truck just before he was seen by the defendant). It remains only for this court to review the assignments of error concerning the instructions under which the jury reached its verdict.
Appellant assigns error respecting the giving of an 'unavoidable accident' instruction, which he claims was prejudicial, confusing to the jury, and not supported by the record. A comprehensive statement governing the use of such an instruction was articulated in Cooper v. Pay-N-Save Drugs, Inc. (1962), 59 Wash.2d 829, 371 P.2d 43. This court has never reversed for a refusal to give such instruction, but this does not mean that such an instruction would be improper when there is evidence which shows or supports an inference...
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