Farrow v. Ostrom

• Decision Date: 15 October 1941
• Docket Number: 28490.
• Citation: 117 P.2d 963,10 Wn.2d 666
• Parties: FARROW v. OSTROM et ux.
• Court: Washington Supreme Court

117 P.2d 963

10 Wn.2d 666

FARROW v. OSTROM et ux.

No. 28490.

Supreme Court of Washington

October 15, 1941

Department 2.

Action for injuries by Emma L. Farrow against Cameron W. Ostrom and the community, composed of named defendant and May C. Ostrom his wife. From a judgment for the plaintiff, defendants appeal.

Affirmed.

Appeal from Superior Court, King County; Donald A McDonald, judge.

Shank Belt, Rode & Cook, of Seattle, for appellants.

Wright & Wright, of Seattle, for respondent.

BLAKE Justice.

Plaintiff brought this action to recover damages for injuries sustained when she was struck by an automobile driven by Cameron W. Ostrom. From a judgment entered on the verdict of a jury in favor of plaintiff, defendants appeal.

The sole question to be determined is whether respondent was guilty of contributory negligence as a matter of law. In approaching the question, there are several fundamental rules to be observed. Contributory negligence is an affirmative defense, the burden of proving which is on the defendant; and only in rare instances is the court warranted in withdrawing the issue from the jury. McQuillan v. Seattle, 10 Wash. 464, 38 P. 1119, 45 Am.St.Rep. 799. The questions of negligence and contributory negligence are usually so intimately related that the latter cannot be determined without reference to the former. Hines v. Chicago, M. & St. P. R. Co., 105 Wash. 178, 177 P. 795. There is no more justification for the court to hold a plaintiff guilty of contributory negligence as a matter of law than there is to hold a defendant guilty of negligence as a matter of law. Richmond v. Tacoma R. & Power Co., 67 Wash. 444, 122 P. 351. In all cases, the 'victim of an accident is entitled to have his conduct judged by the circumstances surrounding him at the time of the accident by the conditions as they appeared to one in his then situation, and, if his conduct when so judged appears to be that of a reasonably prudent person, he cannot be said to be guilty of negligence.' Hull v. Seattle, Renton & Southern R. Co., 60 Wash. 162, 167, 110 P. 804, 806. When contributory negligence is urged as a matter of law, the question is to be determined in the light of the evidence most favorable to plaintiff. Weinman v. Puget Sound Power & Light Co., 175 Wash. 73, 26 P.2d 395.

The accident out of which the present action arose occurred in the north pedestrian lane of Marion street at the intersection of Twenty-third avenue, in the city of Seattle. There was, at the time, a double brack street railway on Twenty-third avenue. The respondent was walking westerly on Marion street, within the sidewalk lines (extended), and the appellant was coming from the north along the westerly streetcar track at a rate of twenty-five miles an hour. Parenthetically, we should probably state that appellant insists that he was traveling 'astraddle of the westerly rail.' But we think that, under the evidence, the jury may well have found that he was proceeding along the track. As we proceed, the importance of this issue of fact will appear. Appellant did not sound his horn as he approached the crosswalk.

When respondent arrived at the northeast corner of the intersection, a funeral procession was stalled on Twenty-third avenue. The procession was headed north. One car had stopped just north of the crosswalk. The car following it stopped just to the south, leaving the crosswalk clear for pedestrian traffic. Before stepping from the curb, respondent looked to the north and south. She then started to cross the street, but went back to the curb. Again she started across and again turned back. She started a third time and continued until she was struck, when she had taken '* * * about one step from behind this car [the car that was standing just to the north of the crosswalk].'

The burden of appellants' argument is that respondent emerged 'from behind this car' and stepped into a zone of danger without looking. They seek to invoke the well-established rule that one who is struck when stepping from behind a parked car or other obstruction into the path of vehicular traffic without looking, is guilty of contributory negligence as a matter of law. The rule is applied in the following cases cited by appellant: Harder v. Matthews, 67 Wash. 487, 121 P. 983; Deets v. Tacoma Railway & Power Co., 128 Wash. 210, 222 P. 480; Hooper v. Corliss, 146 Wash. 50, 261 P. 645; Gottstein v. Daly, 166 Wash. 582, 7 P.2d 610; Hamblet v. Soderburg, 189 Wash. 449, 65 P.2d 1267; Davis v. Pinkerton, 199 Wash. 579, 92 P.2d 706.

In only one of these cases is there a possible inference that the rule is applicable where the pedestrian is injured by an automobile while on the crosswalk at a street intersection. That is in the Soderburg case. There, the pedestrian, without looking at any time, ran out from the curb in front of a parked bus into the path of an oncoming car. The court said [189 Wash. 449, 65 P.2d 1269]:

'Present-day traffic upon our streets and highways is of such a nature that the duty of reasonable care, which rests upon all, requires, in almost any conceivable situation, a fairly efficient attempt at observation Before a pedestrian steps into the path of vehicular traffic.

'Where, as here, no attempt at observation is made and especially where one steps out from behind an obscuring object, the pedestrian is guilty of negligence as a matter of law.' (Italics ours.)

Of course a pedestrian is chargeable with contributory negligence as a matter of law when, without looking, he steps from the curb into the path of an oncoming car either at an intersection or in the middle of the block. And he will not be heard to say he looked and did not see a car that was in...