Hines v. Neuner, 32160

• Decision Date: 26 February 1953
• Docket Number: No. 32160,32160
• Citation: 253 P.2d 945,42 Wn.2d 116
• Court: Washington Supreme Court
• Parties: HINES, v. NEUNER et al.

Page 116

42 Wn.2d 116

253 P.2d 945

HINES, v. NEUNER et al.

No. 32160.

Supreme Court of Washington, Department 2.

Feb. 26, 1953.

Houghton, Cluck, Coughlin & Henry and Paul Coughlin, Seattle, for appellant.

Graves, Kizer, Martin & Shorts, Seattle, for respondent.

FINLEY, Justice.

This is a personal injury-negligence action. The plaintiff was injured while using a pedestrian crosswalk at the intersection of Fifteenth Avenue West and West Dravus Street in Seattle, when he stumbled and fell over a tow cable, which was attached to the rear of defendant Neuner's automobile and to the front of defendant Mylet's automobile, and was being used at the time to tow the latter's automobile along Fifteenth Avenue West.

A jury rendered a verdict in favor of the defendants. Plaintiff's motion for a new trial was denied, and judgment was entered, dismissing the action with prejudice. Plaintiff's appeal is on a short record under Rule on Appeal 34(3), 34A Wash.2d 36. Error is assigned to the trial court's instructions Nos. 9 and 10, to the denial of plaintiff's motion for a new trial and the dismissal of the action with prejudice.

Fifteenth Avenue West is one of the main traffic arterials, running north and south, in Seattle. Fifty-four feet wide, it measures 27 1/2 feet east of the center line and 26 1/2 feet west of it. The avenue is intersecuted at right angles by West Dravus street, running east and west. To the east of the intersection, West Dravus Street proceeds up a sharply inclined hill. Plaintiff's testimony emphasized that much of the traffic, proceeding east on West Dravus Street from the Fort Lawton-Magnolia districts, turns left (to the north) at the intersection to avoid the steep hill on West Dravus Street, east of the intersection. At the time of the accident, the traffic lights at the intersection were of the type that switch from red to green without any intervening amber warning light. There were pedestrian traffic-control lights at each corner of the intersection.

Defendant Neuner's car, towing the Mylet car and proceeding south in the traffic lane nearest the center line of Fifteenth Avenue West, approached the intersection as the traffic light changed from green to red. The two cars stopped for the traffic light, but not until the Neuner car had crossed the pedestrian walkway. Its rear wheels were just at the south line of the east-west crosswalk traversing Fifteenth Avenue West. The Mylet car stopped with its front wheels about even with the north line of the pedestrian crosswalk. The steel towing cable connecting the two automobiles was about three-eighths inches in diameter. Testimony indicated it was dirty brown in color and covered with grease. It was stretched taut across the pedestrian walkway, at a height of two to two and one-half feet above the pavement. The testimony is conflicting at to whether the distance between the two cars was more or less than fifteen feet. By city ordinance, a warning flag or sign must be attached midway of a towing cable when two cars so connected are more than fifteen feet apart.

The accident occurred about one o'clock p. m. on a clear day. The witnesses could not remember whether the sun was shining or not. Plaintiff Hines testified that he was hurrying to cross Fifteenth Avenue West to catch a bus which he saw approaching the intersection from the south on Fifteenth Avenue West. He claimed that he looked at the pedestrian traffic signal on the northeast corner of the intersection; that he waited until the signal permitted pedestrians to cross, and then started across the street in the pedestrian walkway, keeping a lookout to his right for automobiles which might be proceeding east on West Dravus Street and turning left and to the north on Fifteenth Avenue West. Plaintiff did not see the tow cable until after he had fallen over it to the pavement, and had crawled on his hands and knees to the northeast corner of the intersection. There, he looked back to where he had fallen, and, for the first time, saw the tow cable.

A witness, Eva Scalese, testified that she was looking out the window of a drugstore located on the northwest corner of the intersection; that she saw plaintiff Hines approach the crosswalk, look at the pedestrian signal, and then start across Fifteenth Avenue West. Her testimony was, that she did not notice the defendants' cars and that she did not see the tow cable until after Mr. Hines fell, when she looked to see what had tripped him and saw the tow cable connecting the two automobiles.

Appellant's first assignment of error goes to the trial court's instruction to the jury No. 9. It read as follows:

'You are instructed that a person cannot cast the entire burden of his protection upon another, and that everyone owes a duty to himself in that respect. One must use his own intellect, senses and faculties for his own protection. The law does not permit a person to close his eyes to danger and then if he is injured as a result of such danger, to seek remedy in damages against another.

'In the eyes of the law, a person will not be heard to say that he did not see an object which he plainly could have seen had he looked. The situation from a legal point of view is the same as though he had looked and seen the object. When the law requires a person to look, it places upon such person the duty of seeing and observing.

'If you find from a preponderance of the evidence that the plaintiff failed to use reasonable care for his own protection, then he was negligent, and if such failure on his part was one of the causes contributing to the accident, then he was guilty of contributory negligence. A plaintiff guilty of contributory negligence cannot recover damages.' (Emphasis supplied.)

The appellant contends this instruction was erroneous and prejudicial because, as worded, it states principles applicable only where there is a positive duty to look to discover a dangerous situation. He contends there was no such positive duty imposed upon him--that his only duty was that of exercising reasonable care for his own safety, taking into account all the facts existing at the time of the injury. The vice which appellant sees in instruction No. 9 is that it virtually impels a finding of contributory negligence by the jury.

Among the factors bearing upon the reasonableness of his conduct, despite his failure to see the tow rope, appellant points out the following: That reasonable men do not walk with their eyes affixed to the ground; this is especially true when crossing a busy intersection; there is no reason to look to the ground unless it can reasonably be anticipated there is some danger there, and that it is asking too much of one to anticipate that another might have stretched a tow cable across a pedestrian walkway. Appellant emphasizes that he was entitled to devote his attention to the pedestrian traffic signal and to watch for eastbound cars on West Dravus Street which might be turning left (to the north) at the intersection into the northbound traffic lane ahead of him on Fifteenth Avenue West; and finally, that the Neuner car on plaintiff's right increased the hazards by restricting the visibility, both of the plaintiff and of those who might make left turns off West Dravus.

Respondents contend that the instruction was proper; that plaintiff cannot recover, because he could have discovered the danger if he had only used his physical senses as a reasonable man should; that the instructions must be construed together, and if so construed, there is no prejudicial error.

The broad question concerning the propriety of instruction No. 9 is whether it is prejudicial because of its strong tendency to tell the jury it is contributory negligence, under all circumstances, to fail to perceive that which is discoverable by the use of one's senses. We are of the opinion that in practical effect instruction No. 9 did just that, and thereby runs afoul of the rule we have repeated time and again--that the question of contributory negligence is for the jury. Scott v. Pacific Power & Light Co., 178 Wash. 647, 35 P.2d 749; Smith v. Manning's, Inc., 13 Wash.2d 573, 126 P.2d 44.

The cases specifically involving the question of a pedestrian's right to recover when he has tripped over a tow rope are not very helpful; many of them are distinguishable on their facts, and none of them specifically deals at length with the duty of a pedestrian to see the tow rope. See 3 Berry, Law of Automobiles (7th ed.) 272, § 3.178 et seq. Nor do we think those cases are strictly in point which relate to the general duty of a pedestrian to look and listen for cars before crossing a street, 3 Berry, supra, 220, § 3.147, for the simple reason that such cases involve that which is reasonable to be expected--moving vehicular traffic--rather than that which cannot reasonably be expected--a tow cable stretched across a crosswalk between two stopped automobiles.

We have decided in other contexts that, although one must use his faculties and senses to discover and avoid danger, Johnson v. Washington Route, Inc., 121 Wash. 608, 209 P. 1100, there is not in all instances a positive duty of looking for particular objects in one's path, which, admittedly, could have been seen if only the plaintiff had looked. In such cases, we made it clear that it was for the jury to decide whether a reasonable man, in the plaintiff's shoes, would, under the circumstances, have failed to perceive the obstacle in his pathway. Smith v. Manning's, Inc., supra; Griffin v. Cascade Theatres Corp., 10 Wash.2d 574, 117 P.2d 651; and Simpson v. Doe, 39 Wash.2d 934, 239 P.2d 1051. The novelty of the present case lies in whether the same rule as found in those cases applies to the failure of a pedestrian to see a tow rope stretched across a crosswalk which he is lawfully using.

The problem posed is that of imputed knowledge and of deciding under what circumstances knowledge of a dangerous situation, which...