Hooven v. Moen

• Decision Date: 27 November 1928
• Docket Number: 21399.
• Citation: 272 P. 50,150 Wash. 8
• Parties: HOOVEN v. MOEN et al.
• Court: Washington Supreme Court

272 P. 50

150 Wash. 8

HOOVEN v. MOEN et al.

No. 21399.

Supreme Court of Washington

November 27, 1928

Department 2.

Appeal from Superior Court, King County; Walter B. Beals, Judge.

Action by Mary Hooven against Jack Moen and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Whittemore & Truscott, J. Speed Smith, and Henry Elliott, Jr., all of Seattle, for appellants.

Murphy & Kumm and Orville C. Hatch, Jr., all of Seattle, for respondent.

ASKREN J.

This appeal is from a verdict and judgment in favor of plaintiff in an action for personal injuries sustained when she was struck by an automobile owned by the defendants Flakstad and operated by their employé, defendant Jack Moen.

The appeal presents the usual question in such cases: Was the respondent guilty of contributory negligence as a matter of law? This depends on the facts. While the evidence was in conflict in some respects, the jury had evidence before it from which it might reasonably conclude as follows: The respondent, in company with her daughter and two sons, all adults, drove in an automobile from Woodenville to Eighty-Seventh and Greenwood streets just outside the city limits of Seattle. The car was stopped between Eighty-Fifth and Eighty-Seventh streets on the west side of the street and respondent alighted, and crossed Greenwood avenue to Stong's Market to make a purchase. It was shortly after 6 o'clock on a Saturday evening in the summertime with no untoward weather conditions to interfere with visibility. Greenwood avenue is paved to a width of 40 feet between Eighty-Fifth and Eighty-Seventh streets, Eighty-Fifth street being at the city limits of Seattle.

Respondent upon completing her purchases, started to return to the car. At what point she started to cross the street the testimony is not at all conclusive, witnesses placing it at various points, but all agreeing that it was south of Eighty-Seventh street. Starting to cross the street, she noticed two cars approaching from the south. She stepped back to allow then to pass and then proceeded across. Before starting she looked to her right as well as to her left. Just before she reached the car she was struck by a Ford coupé driven by the defendant Moen and hurled quite a distance through the air, and was picked up from the pavement in a very serious condition having injuries of a grave character.

Appellants argue the point of contributory negligence from many angles. It is asserted that, although respondent testified that the road was clear to her right or north as she looked up the street before starting to cross, yet the fact that she was hit by an automobile demonstrates that her testimony is untrue, and that she will not be heard to say that she looked and did not see that which she must have seen. Citing Maddux v. Gray, 128 Wash. 149, 222 P. 470; Silverstein v. Adams, 134 Wash. 430, 235 P. 784; and other similar cases. But appellant must assume in presenting this argument that the Ford was traveling at a slow rate of speed and was within reasonable proximity of the point at which respondent was crossing, having due regard for the difference in their speeds. There was testimony that the Ford approached at a speed of from 40 to 45 miles an hour, which, considering the ordinary speed of a pedestrian, would place the Ford at a distance of 600 of 700 feet away at the time respondent started to cross the street. We cannot say that it is negligence for a pedestrian to cross a street 40 feet wide when the only approaching automobile is approximately two blocks away. We think this too apparent to require argument or citation of authority.

But perhaps the strongest issue presented by appellant arises out of the question of what degree of care is required by a pedestrian crossing a street at a point other than a designated crossing, appellant insisting that respondent was required to keep a continuous lookout for automobiles. In support of the contention that the highest degree of care is required, appellant has cited a large number of cases involving accidents within the limits of certain cities where the pedestrian attempted to cross between street crossings. Among these are Harder v. Matthews, 67 Wash. 487 121 P. 983, where a woman crossed a street diagonally between crossings in the city of Spokane, and stepped from behind an express wagon directly in front of an approaching automobile; Daugherty v. Metropolitan...