Cox v. Kirch

• Decision Date: 16 March 1942
• Docket Number: 28562.
• Citation: 123 P.2d 328,12 Wn.2d 678
• Parties: COX v. KIRCH.
• Court: Washington Supreme Court

123 P.2d 328

12 Wn.2d 678

COX v. KIRCH.

No. 28562.

Supreme Court of Washington

March 16, 1942

Department 1.

Action by George Cox against John C. Kirch to recover for injuries sustained when plaintiff was struck by defendant's automobile. From a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from Superior Court, Stevens County; W. Lon Johnson, Judge.

Smith Troy and John E. Belcher, both of Olympia, for appellant.

O. G Follevaag, of Deer Park, and Williams & Cooney, of Spokane for respondent.

DRIVER, Justice.

Plaintiff a pedestrian, brought suit for damages for personal injuries which he sustained in a collision with an automobile driven by the defendant. The court heard the case without a jury and found: 'That the defendant was operating said automobile at a greater speed than what was reasonable and proper under the conditions existing at the point of operation, and commenced to pull his car to the left of the center line of the highway, about 150 to 175 feet Before striking the plaintiff, and at the point of colliding with plaintiff, the defendant was four feet on the south [his left] side of the yellow center line of said highway.'

The court further found that the defendant 'skidded his car' thirty-five feet Before and thirty feet after striking the plaintiff, which indicated excessive speed; that defendant failed to exercise due care when he observed plaintiff on the highway two hundred feet distant, and negligently and carelessly drove his car to the left of the center of the highway, striking and injuring the plaintiff. Judgment for plaintiff was entered, and defendant appealed.

Appellant does not challenge the trial court's findings as to his own negligence. As stated in his opening brief, his assignments of error raise only the question whether the record shows that respondent was guilty of contributory negligence.

There was no court reporter functioning at the trial, and the statement of facts consists of a narrative summary of the testimony of the witnesses. The facts which bear upon the one question under consideration are as follows: The highway on which the accident occurred extends easterly and westerly through the unincorporated town of Clayton. There was no direct testimony as to its width. A map admitted in evidence as an exhibit, which appears to be a blue-print copy of the plat of Clayton, depicts it as sixty feet wide, but evidently that is the width of the entire right of way. From another exhibit, a picture of the scene of the collision, the roadway appears to consist of a central oil surfaced portion about twenty feet wide, flanked on either side by a graded shoulder.

At 4:30 in the afternoon of October 27, 1939, respondent left the brickyard on the north side of the highway, where he was employed, and started to walk across the road to the southerly side, following a pathway which the brickyard workers have used for sixteen years. At the same time appellant was approaching along the highway from the east. As respondent stood on the north shoulder, facing south, the highway to his left (east) was straight for at least a thousand feet, while to his right (west), it turned southward in a pronounced curve. Respondent testified:

'* * * When I reached the shoulder of the highway, I stopped and looked to my left and saw a car approaching. It was a little to the west of the McGorty Service Station, about one-eighth of a mile to my left. I also looked to my right, and there was a car coming about 20 feet from me, and I started across the highway, feeling certain that I could get across Before the car from the east reached the point where I would be crossing. I had reached the yellow center line in the highway and a short distance south of the yellow line when I was struck by a car and knocked unconscious, * * *.'

A Clayton storekeeper testified that he heard the crash of the collision and saw respondent 'up in the air,' with his arms stretched out, in front of appellant's car; that respondent 'was on the south side of the yellow line when he was hit'; and that appellant's car came to rest at the curb on the south side of the highway, about thirty-five feet from the point of impact.

Another witness for respondent stated that he heard a loud crash and, upon runnin across the road, found respondent in the gutter on the south side. There had been a slight mist, he said, and the pavement was wet and 'I could plainly see the tracks of the automobile for more than 175 feet east of where Mr. Cox [respondent] was struck. I could plainly see where the left wheels crossed the yellow line of the pavement, and stayed on the south side of the yellow center line of the pavement from there on, angling slightly to the left up to the point where George Cox was hit.'

The appellant's version of the accident was as follows:

'* * * I reached Clayton about 4:40 p. m. and a car was ahead of me which turned into a side street next to Westby Brothers' Garage. I noticed a man coming on to the north side of the highway, crossing the street from the foot path that leads from the brickyard to the highway. I was about 150 to 200 feet from him when I first saw him. There was another car coming in the opposite direction which I passed about 20 or 25 feet Before striking Mr. Cox. * * * The center of my radiator struck Mr. Cox, and he was exactly on the yellow line when I hit him. I thought I was going pretty slow when I hit him; just my personal opinion. The road was wet from a light mist. * * * After I hit him, the car skidded on the super of the road * * * and stopped clear to the south side of the road.'

On cross-examination, appellant stated: '* * * I had been in Clayton a number of times and I knew the employees from the brick plant crossed the highway after work at the point where Mr. Cox crossed, and at about that time. * * * I sounded the horn and put on the brakes about the same time. I skidded for 35 feet Before I struck Mr. Cox. After I struck him, I skidded for 30 feet.'

An employee of the brickyard company, a witness for appellant, testified that he was crossing the road about three hundred feet east of the point where the collision occurred when he heard a crash and a horn 'about the same time.' On cross-examination, he stated that he did not know how fast appellant's car was going, 'but I would say about 25 or 30 miles an hour.'

Another brickyard workman, also called as a witness for appellant said that he had worked with respondent 'practically all afternoon on the date of the accident'; that 'The place is noisy and leaves one deaf for about two hours'; that he had crossed the highway from the brickyard somewhat ahead of respondent, and, when he reached the sidewalk on the south side and turned around 'I saw George Cox about at the yellow center line of the highway. It seemed like Mr. Cox stopped for an instant about in the center of the road when he was struck * * *.' On cross-examination, he testified he did not know why he had...