Hagstrom v. Limbeck

• Decision Date: 13 November 1942
• Docket Number: 28725.
• Citation: 15 Wn.2d 399,130 P.2d 895
• Parties: HAGSTROM v. LIMBECK et ux.
• Court: Washington Supreme Court

130 P.2d 895

15 Wn.2d 399

HAGSTROM v. LIMBECK et ux.

No. 28725.

Supreme Court of Washington

November 13, 1942

Department 2.

Action by Louis Hagstrom against George A. Limbeck and wife to recover for injuries sustained by pedestrian in colliding with automobile.From a judgment for defendants on the verdict, plaintiff appeals.

Affirmed.

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

George F. Hannan and R. L. Bartling, both of Seattle, for appellant.

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

DRIVER Justice.

This is an appeal by the plaintiff from a judgment entered upon a verdict for the defendants in an action for personal injuries.

Appellant urges that the evidence so overwhelmingly preponderates in his favor that he should be granted a new trial.If he is to prevail on that theory, it must appear from the record first, that, as a matter of law, respondent husband was guilty of negligence proximately causing appellant's injuries; and, second, that there was not sufficient evidence of contributory negligence on the part of the appellant to take that issue to the jury.As we think the second prerequisite disposes of appellant's contention, we shall limit our recital of the pertinent facts accordingly, bearing in mind the familiar rule that, where a verdict is attacked for insufficiency of proof, all the evidence favorable to the prevailing party must be taken as true; and, if there be any substantial evidence, or reasonable inference from the evidence, to support the verdict, it must stand.

Appellant, a pedestrian, was injured when he was struck by an automobile driven by respondent husband (for convenience, he will be referred to as if he were the only respondent).The accident occurred August 27, 1940, at about 9 o'clock in the evening, on the south cross-walk of the intersection of Greenwood avenue and North 107th street about a mile north of the northerly limits of the city of Seattle.

Greenwood avenue runs north and south and is an arterial highway, paved with concrete 40 feet wide, and divided into four marked traffic lanes.North 107th street is a graveled east-west, non-arterial road, which intersects Greenwood avenue at right angles.The avenue approaches the intersection from the south on an ascending grade of 3 1/2%.It has a posted speed limit of 35 miles an hour.

At the time of the accident, it was dark but the weather was clear.Appellant had stepped out of a parked car to look for a street sign at the intersection.There being no such sign on the southwest corner, he started to cross Greenwood avenue (from west to east) to look at a telephone pole at the southeast corner of the intersection.At the same time, respondent was approaching the intersection from the south, driving north on Greenwood.

Appellant testified, on direct examination: '* * * So I started across the street.And as I did, I looked to the south and I seen a car coming from the south.Well, I kept watching that car because I knew the other car, I was past that, and so as I got about nearly maybe to the middle of the street or two feet beyond the middle, I seen he was coming so fast that I says, 'Well, there is plenty of room here for both of us so I will take no chances and let him go by.'So after--well, after I made up my mind to not go across, why, I seen he was coming so fast and maybe, oh, it might have been fifty or seventy-five feet, and when he got about twenty or twenty-five feet of me he was right in the middle of the pavement, and I says--* * * I knew he didn't see me and that is the last I knew.'

On cross-examination, appellant testified:

'Q.When you first saw the [respondent's] car down here some four or five hundred feet you say, could you tell then how fast it was coming?A.No; I couldn't right at that time; no.

'Q.Not right at that time; but even at that time it was obvious to you that it was coming pretty fast, wasn't it?Is that right?A.Yes, sir. * * *

'Q.Youcontinued to watch it as it came towards you?A.Yes, sir.

'Q.Well, after you had walked out, say, ten feet onto the pavement, where you came to this first yellow line dividing the southbound strip of pavement, how close then had the car gotten to you?* * * A.Well, I'd judge maybe about 200 feet--maybe.

'Q.It was a lot closer to you then than it had been Before , wasn't it?A.Yes, sir.

'Q.At that time were you able to determine how fast it was coming?A.Well, I knew it was going so fast that I wouldn't cross the street.I'd let him go by.

'Q.Did you first come to that conclusion when you were on the first yellow line ten feet from the west edge of the pavement?A.Oh, no.When I got to the middle. * * *

'Q.Its headlights were burning?A.Yes; very bright.

'Q.There was nothing to prevent you from seeing it, was there?A.No, sir.

'Q.Was there anything to prevent you from determining how fast it was coming?A.No; I don't think so.

'Q.And your mind--your attention was not distracted by anything else except this one car, was it?A.That is all I had to watch out for.'

Appellant then stated that respondent's car was traveling on the inside easterly traffic lane, and that he continued walking on across the center line of the highway into that lane 'maybe a couple of feet.'

'Q.And it was coming right straight at you in this lane wasn't it?A.Yes, sir.

'Q.Were its headlights burning?A.Yes, sir.

'Q.And in full sight, full view of you?A.Yes, sir.* * * When I decided not to cross, he must have been fifty or seventy-five feet away from me.

'Q.Fifty to seventy-five feet to the south and to your right?A.Yes, sir.

'Q.And you at that time were out two feet across the center line directly in front of his car; is that right?A.Yes, sir.

'Q.At that time you knew how fast he was coming, didn't you?A.I had a pretty good idea; yes.

'Q.And then is when you made up your mind that you would have to stop and let him go by?A.Yes, sir.

'Q.He was still driving close to the center line, wasn't he?A.Yes.

'Q.Hadn't changed his position any?A.No, sir.

'Q.And didn't change his position thereafter as far as you knew?A.No, sir.

'Q.And you continued to stand in that position until the lights went out and you know nothing more about it; is that right?A.Well, when I seen he was about 20, 25 feet from me, I says, 'I guess he didn't see me.' and that is the last I remember.'

According to respondent's testimony, as he approached the intersection, he was driving north at about 40 miles an hour and with his left front wheel about 2 feet east of the center line of the highway.He further stated that, '* * * all of a sudden I saw a man standing just outside of the glow of the headlight about two feet to the left.

'Q.To the left of what portion of your car?A.Of my front left headlight; and I immediately stepped on the brakes and about the same instant that I stepped on the brakes he kept on walking and he,--like that his elbows hit my hood, and * * *.The speed of the car threw his head against my windshield but at the same time his body stayed right on that hood and his head leaned back.It just happened all so quick that it didn't seem hardly no time at all that his body rebounded when I stopped suddenly and he slid off over the headlight onto the street.

'Q.Was there any damage to the headlight and fog light on your car?A.Yes.

When he slid over the headlight he hit it with such force that he dented in the fender, the headlight shell and the fender, and the lens was broken, and he caught my fog light and that was turned too.'

Even under appellant's own testimony, the jury could have found that his negligence proximately contributed to his injuries.Before he reached the center of the highway, he saw respondent's automobile approaching when it was several hundred feet distant.Its headlights were burning, and it remained in sight until it struck him.It was on the proper side of the highway, and it did not vary its course or change its speed.There was nothing to obstruct appellant's view or to distract his attention.When he reached the center of the highway, plainly indicated by a double line, he chose to go 2 feet beyond it and directly in the...