Femling v. Star Pub. Co.

• Court: Washington Supreme Court
• Writing for the Court: ROBINSON, Justice.
• Citation: Femling v. Star Pub. Co., 195 Wash. 395, 81 P.2d 293 (Wash. 1938)
• Decision Date: 12 July 1938
• Docket Number: 26775.
• Parties: FEMLING et al. v. STAR PUB. CO.

81 P.2d 293

195 Wash. 395

FEMLING et al. v. STAR PUB. CO.

No. 26775.

Supreme Court of Washington

July 12, 1938

Department. 2.

Appeal from Superior Court, King County; Howard M. Findley, Judge.

Action by Frank Femling, by Ralph Femling, his guardian ad litem and another against the Star Publishing Company for injuries sustained and medical expenses resulting from being struck by a bicycle ridden by a newspaper carrier, allegedly defendant's servant. Verdict and judgment for plaintiffs and defendant appeals.

Affirmed.

Ralph S. Pierce, Edwin J. Cummins, and Gordon H. Sweany, all of Seattle, for appellant.

Maslan & Maslan, of Seattle, for respondents.

ROBINSON Justice.

Respondent Ralph Femling brought this action on his own behalf and as guardian ad litem of his infant son Frank Femling to recover damages for medical expenses incurred by himself and for personal injuries suffered by his son as a result of a collision with a bicycle ridden by Norman Lindjord, a newspaper carrier and assertedly the servant of appellant Star Publishing Company.

The cause was tried to a jury which returned a verdict for respondents in the amount of one thousand dollars to the injured boy and seventy-five dollars to the father. From a judgment entered on that verdict, appellant appeals.

Appellant's position is that the evidence failed, as a matter of law, to show that Norman Lindjord was negligent or that he was the servant of appellant. Accordingly, appellant assigns as error the facts that the court refused to sustain appellant's challenge to the sufficiency of the evidence, refused to direct a verdict for appellant, and refused to grant appellant's motion for judgment notwithstanding the verdict. Appellant introduced no evidence in defense, except with respect to the extent of the boy's injury, and now relies wholly upon the asserted insufficiency of respondent's evidence. Inasmuch as the case presents two distinct problems, we shall state, separately, the facts bearing upon each question.

The facts relating to the alleged negligence of Norman Lindjord are as follows: The accident occurred on Greenwood Avenue near the southeast corner of Greenwood and North 84th Street in Seattle. Greenwood Avenue is an arterial street. The time was 3:30 p. m. on September 24, 1936. The weather was clear, and the asphalt pavement was dry. Norman had just received his newspapers and was starting out on his bicycle to deliver them to the subscribers on his route. The papers, which weighed a little over forty pounds, were piled in a rack attached to the front of the bicycle. Norman was riding north on Greenwood Avenue and down a 4.9% grade. He was traveling at ten or twelve miles per hour and riding about six feet from the right-hand curb. There was no other vehicular traffic near. A large truck was parked at the east curb of Greenwood with its front end about five feet south of the south line of the pedestrian crosswalk on North 84th Street. As Norman approached the intersection, he looked ahead and, according to his testimony, did not see anyone crossing, or about to cross, the street. He did not slacken his speed. As he came alongside the truck, he was about one foot from it. As he drew abreast of the motor hood of the truck, respondent Frank Femling, not quite four years old, 'hurried' out from the shelter of the truck directly into Norman's path. Norman saw him, yelled, swerved his bicycle sharply to the left, and threw on his brake; but to no avail--Frank was struck and knocked down in the street with sufficient force to break his leg and to cut his head. Norman stopped within three feet from the point of collision.

Since Frank was but little more than a baby, the case presents no question of contributory negligence. Von Saxe v. Barnett, 125 Wash. 639, 217 P. 62; Armstrong v. Spokane United Railways, Wash., 78 P.2d 176. It is insisted that Frank was not on the crosswalk but to the south of it, but no one claims that he was more than four feet from it at the most, and the jury had a right to find that he was so near that the matter is not at all material. Goninon v. Lee, 119 Wash. 471, 206 P. 2; Horney v. Giering, 132 Wash. 555, 231 P. 958. So far as we are advised, there is no statute regarding the speed of bicycles at crossings or otherwise. The vehicle code in force at the time of the accident expressly excludes conveyances propelled by muscular power. Rem.Rev.Stat. § 6362-2(a).

It is now necessary to go back a little in time to see how Frank came to be where he was. The Femling family lived on North 84th Street about a block east of Greenwood Avenue. Frank had an older brother, Jerry, then aged five years. Frank, Jerry, and another five year old identified only as 'Sonny' were going somewhere to play. They proceeded west on North 84th. When they came to Greenwood Avenue, Jerry and Sonny crossed to the west side, but Frank did not. Jerry testified that he and Sonny stood on the curb and that he shouted to Frank to stay where he was until he (Jerry) came to get him. Jerry then started back across Greenwood to get Frank and he was in the street and 'over on Frankie's side' when the accident occurred.

Respondents introduced the testimony of a so-called 'bicycle expert,' a man who ran a large bicycle repair shop. This witness testified that a bicycle like Norman's, loaded as Norman's was, and ridden as Norman's was ridden, would take fifteen feet to stop and would be sluggish and hard to control. On cross-examination, however, he admitted that Norman, who had had three years' experience in riding with a large load of papers on his bicycle, would be able to control the bicycle 'much better than the average boy.'

Appellant asks this court to say that these facts are, as a matter of law, insufficient to charge Norman Lindjord with negligent operation of his bicycle, and that the trial court erred in submitting this issue to the jury and in accepting the jury's verdict.

It is well settled in this jurisdiction that: 'A challenge to the sufficiency of the evidence or a motion for nonsuit admits the truth of plaintiff's evidence and all inferences that can reasonably be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, or in the light most favorable to the plaintiff.' Buttnick v. J. & M., Inc., 186 Wash. 658, 59 P.2d 750, 751; Kedziora v. Washington Water Power Co., Wash., 74 P.2d 898.

It is likewise settled that a court is not warranted in granting judgment notwithstanding the verdict unless it can be said that there is neither evidence nor reasonable inference from evidence sufficient to sustain a verdict. Corbaley v. Pierce County, Wash., 74 P.2d 993; Kedziora v. Washington Water Power Co., Wash., 74 P.2d 898.

This court has, however, also laid down a rule that negligence must be shown by 'substantial evidence--a scintilla of evidence will not do.' Dunsmoor v. North Coast Transportation Co., 154 Wash. 229, 281 P. 995, 996; Hansen v. Continental Casualty Co., 156 Wash. 691, 287 P. 894; Cartwright v. Boyce, 167 Wash. 175, 8 P.2d 968; Haydon v. Bay City Fuel Co., 167 Wash. 212, 9 P.2d 98.

In deciding whether or not Norman Lindjord was negligent, we must ask this question: Would a reasonable person in Norman's position, with Norman's knowledge and experience, have foreseen that a child might suddenly appear from in front of the parked truck? The parties impliedly concede that, after Norman saw Frank, he did everything possible to avoid striking him. Accordingly, our inquiry must be directed to the situation immediately preceding the time that Frank hurried out into the open street from in front of the truck.

Norman, with forty pounds of papers on the front of his bicycle, was riding downhill at ten or twelve miles per hour and approaching an intersection. The pavement was dry, and he knew that he could swerve his bicycle sharply and stop it in a very short distance. He chose to ride only one foot from the side of a parked truck. If these were all the facts, we should be prepared to say that, as a matter of law, he was not negligent. But there is an additional fact, or at least the jury was entitled to find that Norman saw or should have seen Sonny and Jerry, two five year olds, standing on the curb across Greenwood, and that he saw or should have seen Jerry start back across the street to the east side; that is, that there were small boys playing about the crossing.

It is axiomatic that, when one sees children in the street or has other notice of their presence or the likelihood of their presence in or near his line of travel, then the amount of care necessary to constitute reasonable care is very great. It is common knowledge that from small children one can expect almost any kind of heedless and impulsive conduct.

Appellant relies on Haydon v. Bay City Fuel Co., 167 Wash 212, 9 P.2d 98, to which may now be added Armstrong v. Spokane United Railways, Wash., 78 P.2d 176. In the Haydon Case, a child darted out from behind a large mail box into the path of a truck. It was held that the truck driver was not negligent. But in that case there were no children visible in the vicinity, and there was nothing to warn the driver of the presence of the child. In the Armstrong Case, children were playing baseball in a private yard fronting defendant's street railway tracks. One of them, in retrieving the ball, ran out into the street and into the front of defendant's street car. This court held that the motorman was not negligent, as he had given sufficient warning of his approach and as he had no reason to suppose that one of the boys would run into the street until it was too late to prevent the accident. In the case at bar, Norman gave no warning of his approach to the crossing and...