Hilstad v. City of Seattle

• Decision Date: 31 October 1928
• Docket Number: 21282
• Citation: 271 P. 264,149 Wash. 483
• Parties: HILSTAD et ux. v. CITY OF SEATTLE HILSTAD v. CITY OF SEATTLE
• Court: Washington Supreme Court

271 P. 264

149 Wash. 483

HILSTAD et ux. v. CITY OF SEATTLE

HILSTAD v. CITY OF SEATTLE

No. 21282

Supreme Court of Washington

October 31, 1928

Appeal from Superior Court, King County; John A. Frater, Judge.

Thomas J.L. Kennedy and A.C. Van Soelen, both of Seattle, for appellant.

Roberts Skeel & Holman, of Seattle, for respondents.

FRENCH J.

C.S Hilstad, together with his wife and two small children, were driving east on Jackson street, in the city of Seattle, at 5:30 p.m. on December 26, 1926. At about the time they were entering the intersection of Jackson street and Twenty-Sixth avenue south Mr. Hilstad saw approaching him from the east a street car which he thought was about a block away. He signaled to turn left, and according to his testimony, made a rather wide turn, and just as he was about to cross the north street car track he suddenly discovered the street car within 30 or 40 feet of him. He attempted to accelerate his car and get across, but his testimony is that the street car was coming too fast and he could not do so. It had been a rainy day and was still somewhat misty. It was, of course, dark at the time of the accident. There was no other street car or automobile in sight. The automobile in question was a new Ford sedan. It was hit by the street car on the right side, about the middle. Evelyn Hilstad, the minor child, being eight years of age, was somewhat injured, and the parents were quite severely injured. The automobile was badly wrecked.

An action for damages was commenced by Hilstad and wife, and another brought by Evelyn Hilstad, a minor, by C.S. Hilstad her guardian ad litem, and the two cases were consolidated for trial. The jury returned a verdict in favor of Evelyn Hilstad, the minor, for $1,500, and returned a verdict in favor of the defendant, city of Seattle, in the action waged by the parents for their own injuries. Thereafter a new trial was granted to C.S. Hilstad and wife, and judgment entered in the verdict in favor of Evelyn Hilstad, the minor. The city has appealed both from the order granting a new trial and from the judgment rendered in favor of the minor child.

First, touching on the case of Evelyn Hilstad, there are, practically speaking, but two errors assigned: First, the instructions of the court; and, second, the amount of the verdict.

The trial court instructed the jury that "contributory negligence, if any, on the part of the parents is no defense to the complaint of a minor child of tender years for her own personal injuries." Appellant does not seriously urge that this instruction does not state the law correctly, but seems to argue that the question is a new one in this state, and suggests that the court should pass squarely on the question and adopt a rule.

"In cases of injury to, or wrongful death of, a child, where the action is brought by a parent for his own benefit, the contributory negligence of the parent, the actual plaintiff, will, of course, bar a recovery. It is obvious that such cases afford no support to the doctrine that the negligence of the parent is to be imputed to the child. Both the ethical basis of the rule of imputed negligence and sound authority sustain the view that, where the child is the real plaintiff in an action for his own injury, the parent's contributory negligence is no defense. This view is certainly sustained by reason, and is now supported by the great weight of authority. 1 Shearman & Redfield, Negligence (6th Ed.), § 71. Bellefontaine & I.R. Co. v. Snyder, 18 Ohio St. 399 ; Bellefontaine & I.R. Co. v. Snyder, 24 Ohio St. 670; Western Union Tel. Co. v. Hoffman, 80 Tex. 420, 15 S.W. 1048, 26 Am.St.Rep. 759; Pratt Coal & Iron Co. v. Brawley, 83 Ala. 371, 3 So. 555, 3 Am.St.Rep. 751; Atchison, T & S.F.R. Co. v. Calhoun, 18 Okl. 75, 89 P. 207 ; Robinson v. Cone, 22 Vt. 213, 54 Am.Dec. 67. At any rate, this court is committed to that view. Roth v. Union Depot Co., 13 Wash. 525, 43 P. 641 , 31 L.R.A. 855; Eskildsen v. Seattle, 29 Wash. 583, 70 P. 64." Gregg v. King County, 80 Wash. 106, 141 P. 340, Ann.Cas. 1916C, 135.

We are content to abide by the rule of law there announced, and hold that in an action brought by a minor child of tender years, negligence of the parents cannot be imputed to the child.

Counsel for appellant very seriously urge that the verdict of $1,500 is excessive. The injuries complained of were largely cuts and bruises. The evidence discloses that some of these cuts on the fact of this little girl will probably produce lasting and permanent scars. The trial court, in addition to hearing the testimony, had an opportunity to observe the nature and extent of these scars, and the possibility of the little girl's face being permanently disfigured in at...