Hiteshue v. Robinson

• Decision Date: 28 November 1932
• Docket Number: 24068.
• Citation: 16 P.2d 610,170 Wash. 272
• Parties: HITESHUE et ux. v. ROBINSON et ux.
• Court: Washington Supreme Court

16 P.2d 610

170 Wash. 272

HITESHUE et ux. v. ROBINSON et ux.

No. 24068.

Supreme Court of Washington

November 28, 1932

Department 2.

Appeal from Superior Court, Pierce County F. G. Remann, Judge.

Action by Charles Hiteshue and wife against Dana T. Robinson and wife. From the judgment for plaintiffs, defendants appeal.

Affirmed.

F. A. Latcham, of Tacoma, for appellants.

H. P Jones and J. Charles Dennis, both of Tacoma, for respondents.

BEALS J.

During the month of September, 1931, plaintiffs resided at the southwest corner of Broadway and South Fourth street, Tacoma. At about a quarter after 8 o'clock on the evening of September 8, plaintiff Etta Hiteshue started to walk from her home easterly across Broadway, and, while crossing the street, was struck by defendants' automobile, driven by defendant Dana T. Robinson. The night was clear and the street lights were on, the pavement was dry, and automobiles were parked along each side of the street. Broadway is a paved street, bearing the rails of a single street car track in the center. Mrs. Hiteshue, having crossed approximately nineteen feet of the street, paused to allow an automobile proceeding northerly to pass, and, while at or near the westerly rail of the street car track, was struck and seriously injured by defendants' automobile, which was proceeding along Broadway in a southerly direction.

Plaintiffs brought this action to recover damages on account of the injury suffered by Mrs. Hiteshue, and the cause being tried to a jury, resulted in a verdict in plaintiffs' favor. From a judgment entered on this verdict, defendants appeal.

Appellants assign error on rulings of the trial court refusing to grant their motion for a nonsuit or for a directed verdict; upon the giving of certain instructions to the jury; upon the overruling of their motion for judgment in their favor notwithstanding the verdict, or in the alternative for a new trial; and upon the rendition of judgment against them upon the verdict of the jury.

In support of their first two assignments of error, appellants argue that from the evidence it should be held that Mrs Hiteshue (who will hereinafter be referred to as the respondent) was guilty of contributory negligence as matter of law. It is admitted that respondent was within the pedestrian crossing at the time she was struck. The city ordinance granting to pedestrians the right of way at crosswalks, and limiting to fifteen miles an hour the speed of automobiles at obstructed intersections, it being admitted that the intersection of south Fourth and Broadway is within that classification, was admitted in evidence. Respondent testified that, Before stepping into the paved portion of the street, she looked up the street in the direction from which appellants' car was coming, and, seeing no approaching vehicle, proceeded to cross the street. She testified that she looked again while crossing the street and did not see appellants' car. Respondent was sixty-nine years of age short in stature, and heavy, and it clearly appears that she was walking rather slowly. She had proceeded approximately nineteen feet on her way across the street Before she was struck. There is testimony in the record to the effect that appellants' car was traveling without lights and was proceeding at approximately thirty-five miles per hour. The jury may have concluded that, at the time respondent started to cross the street, appellants' car was so far from the crossing that respondent might well have failed to observe it or, in the exercise of reasonable care, to consider it in any wise a menace to her safety. Mr. Robinson (who will be referred to herein as though he were the sole appellant) testified that on the night in question he could see the crossing for a distance of one hundred fifty feet; that he saw respondent just as she stepped off the curb; that she was proceeding at an ordinary gait; and that his car was proceeding at not more than twenty-five miles an hour when he entered the intersection. He also testified: 'I put on the brakes about the time I saw her; not hard, because I thought she would look around, but she was not looking at me, and when I saw that I put them on.' It clearly appears that respondent was struck with great violence, and that the injuries which she suffered were severe. Appellant did not contend that he sounded his horn, or that any audible warning of his approach was given until his brakes squeaked as he applied them, as he stated, when he became aware that respondent had not seen him.

In connection with this part of his argument, appellant cites the cases of Shanley v. Hadfield, 124 Wash. 192, 213 P. 932; Bracha v. Spokane, etc., R. Co., 128 Wash. 324, 222 P. 477; and Silverstein v. Adams, 134 Wash. 430, 235 P. 784, 785. In the case last cited, it is noted that the plaintiff was struck by an automobile 'just as he stepped from the curb,' and it was held that the plaintiff was guilty of contributory negligence. The court held that the plaintiff would not be heard to say that Before stepping onto the paved portion of the street he had looked in the direction from which the automobile which injured him was actually approaching, and had not seen the same. In the course of the opinion, this court said: 'A number of times this court has held that when a person testifies that he looked and did not see an object which plainly he could have seen, he will not be heard to say that he looked and did not see. In other words, the situation is the same as though he had looked and seen the object.'

The principle upon which the cases cited by appellant were decided is not applicable here, as from the testimony the jury might have concluded that when respondent started to cross the street appellant's automobile was so far from the crossing as not to be noticeable to respondent, and that, if the jury believed that appellant's car was proceeding without lights, respondent might well, under all the circumstances of the case, have failed to observe the same. Under these circumstances, it cannot be held, as matter of law, that respondent was guilty of contributory negligence, and, that issue having been submitted to the jury under proper instructions, appellant's first two assignments of error are without merit. Demase v. Nemitz, 144 Wash. 404, 258 P. 25; Fisher v. Tacoma Ry. & Power Co., 148 Wash. 122, 268 P. 180; Child v. Hill, 149 Wash. 468, 271 P. 266; Anderson v. Grandy, 154 Wash. 547, 283 P. 186; Pearson v. Rex F. Adams Co., 154 Wash. 630, 283 P. 194.

Appellant complains of four instructions given by the trial court. In this connection, it must be remembered that it is admitted that by city ordinance an...