Dabol v. United States

• Decision Date: 09 October 1964
• Docket Number: No. 18935.,18935.
• Citation: 337 F.2d 163
• Parties: Milda DABOL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

337 F.2d 163 (1964)

Milda DABOL, Appellant,
v.
UNITED STATES of America, Appellee.

No. 18935.

United States Court of Appeals Ninth Circuit.

September 9, 1964.

October 9, 1964.

Vernon R. Pearson, Davies, Pearson, Anderson & Pearson, Tacoma, Wash., for appellant.

Brockman Adams, U. S. Atty., Charles W. Billinghurst, Asst. U. S. Atty., Tacoma, Wash., for appellee.

Before MADDEN, Judge of the Court of Claims, and BROWNING and DUNIWAY, Circuit Judges.

Rehearing Denied En Banc

BROWNING, Circuit Judge.

Mrs. Dabol appeals from an adverse judgment in an action under the Federal Tort Claims Act. 28 U.S.C.A. §§ 1346(b), 1402(b), 2671-2680.

The district court found that while crossing a street in a marked crosswalk not controlled by a traffic signal, Mrs. Dabol passed in front of a vehicle stopped halfway across the crosswalk in the first lane, and, without looking to determine whether traffic was approaching, walked into the side of a slow-moving Air Force vehicle in the next lane. The court concluded that "Milda Dabol was guilty of contributory negligence as a matter of fact and also as a matter of law in walking around a stationary vehicle and into the side of the vehicle driven by Sgt. Craig in that she made no attempt to observe and see Sgt. Craig's vehicle when under the circumstances a reasonably prudent person using ordinary care would have seen and observed the military vehicle."

We do not understand Mrs. Dabol to challenge the district court's findings as

337 F.2d 164

to the physical facts. Her argument is that under the provisions of section 46.60.250 of the Revised Code of Washington, Sgt. Craig was negligent as a matter of law in passing a vehicle which had stopped to permit her to cross the street,¹ and her conduct could not absolve the United States from liability for her resulting injuries

Omitting an initial provision not applicable here, R.C.W. § 46.60.250 is set out below. For ease of reference we have added paragraph numbers and italicized the particular portions of the statute upon which Mrs. Dabol relies:

"Pedestrian traffic regulations. 1 * * * Where traffic control signals are not in place or not in operation, the operator of a vehicle shall yield the right of way, slowing down or stopping, if need be, to so yield, to any pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. This provision shall not apply under the conditions stated hereinafter.

"2 Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the operator of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.

"3 Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.

"4 Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right of way to all vehicles upon the roadway.

"5 Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk."

The facts found by the district court brought Mrs. Dabol within the conditions described in the first portion of the initial sentence of paragraph 1 of the statute, and she was therefore given the right of way over the Air Force vehicle. This does not mean, however, that Mrs. Dabol was relieved of the duty to exercise reasonable care for her own safety. In Williams v. Brockman, 30 Wash.2d 734, 193 P.2d 863, 867 (1948), the Washington Supreme Court said:

"A pedestrian must use the right of way accorded him by statute at a recognized street crossing, with due care for his own safety. By his negligence, a pedestrian may subject himself to a ruling that he was guilty of contributory negligence as a matter of law, or he may by his conduct justify a finding by the trier of the fact that he was guilty of contributory negligence as a matter of fact. Those are questions which must be determined in each individual case as it arises."²

This is the majority view.³

337 F.2d 165

Furthermore, unless the provisions of R.C.W. § 46.60.250 relied upon by Mrs. Dabol dictate a different result, the finding that Mrs. Dabol passed the stopped vehicle and walked into the adjacent traffic lane with no attempt to observe approaching traffic probably required a holding that she was guilty of negligence as a matter of law,⁴ at least where, as here, the court also found that Mrs. Dabol walked into the side of appellee's slowly moving vehicle.⁵ In any event, absent a special statutory immunity, it can hardly be denied that the physical facts found by the district court were sufficient to support the court's conclusion that Mrs. Dabol was negligent as a matter of fact.

We therefore turn to Mrs. Dabol's contention that the case is altered by the portions of R.C.W. § 46.60.250 which we have italicized above.

As we have seen, the first sentence of paragraph 1 provides that where there are no operating traffic signals, a vehicle must yield the right of way to a pedestrian crossing in a crosswalk, but the pedestrian shall not move suddenly from a place of safety into the path of a vehicle so close that the driver cannot yield. This provision, the statute adds, "shall not apply under the conditions stated hereinafter." Paragraph 2, immediately following, provides that when a vehicle is stopped to permit a pedestrian to cross, vehicles approaching the stopped vehicle from the rear shall not pass; this, Mrs. Dabol contends, was the present case.⁶ Mrs. Dabol's argument is that it follows from the juxtaposition of these provisions

337 F.2d 166

that when a vehicle has stopped to permit a pedestrian to pass, the prohibition in paragraph 1 against a pedestrian's moving into the path of an approaching vehicle from a place of safety "shall not apply," and therefore no duty is imposed upon the pedestrian to observe oncoming traffic or otherwise act to protect himself. If the approaching vehicle violates its duty to stop, Mrs. Dabol argues, the pedestrian's acts or omissions cannot affect liability

1. The portion of R.C.W. § 46.60.250 involved here is identical with sections 88 and 89 of the Uniform Vehicle Code of 1944⁷ — with a single exception. The last sentence of the first paragraph in section 88 of the Uniform Vehicle Code states that the provisions of that paragraph "shall not apply under the conditions stated in section 89(b)." Section 89(b) is identical to paragraph 4 of R.C.W. § 46.60.250. Thus, under the Uniform Vehicle Code, it is made explicitly clear that the provisions of paragraph 1 with respect to pedestrian privileges and duties in crosswalks not controlled by traffic signals are inapplicable only when the pedestrian crosses the...