James v. Ellis

• Decision Date: 15 April 1954
• Docket Number: No. 32691,32691
• Court: Washington Supreme Court
• Parties: JAMES et ux. v. ELLIS et al.

Page 599

44 Wn.2d 599

269 P.2d 573

JAMES et ux. v. ELLIS et al.

No. 32691.

Supreme Court of Washington, Department 2.

April 15, 1954.

Rehearing Denied May 28, 1954.

H. Earl Davis, Spokane, for appellants.

Patrick H. Murphy, Cashatt & Williams, Spokane, for respondents.

WEAVER, Justice.

By jury verdict, Paul M. James and Minnie James, his wife, recovered judgment against F. E. Baumgartner and Mrs. Baumgartner. The judgment is based upon a claim for injuries, suffered by Mrs. James, resulting from the alleged negligence of defendants' employee, Gerald A. Ellis, and the operation of a motor vehicle.

When considering appellant's assignment of error directed to the trial court's denial of his motion for judgment notwithstanding the verdict of the jury, we are required to view the evidence in the light most favorable to plaintiff. Such motion can be granted only when the court can say, as a matter of law, that there is neither evidence nor reasonable inference from evidence sufficient to sustain the verdict. Howell v. Benton, 1952, 40 Wash.2d 871, 875, 246 P.2d 823, and cases cited.

Under this rule, these are the facts:

At 7:25 a. m., on December 12, 1952, Mrs. James, a pedestrian, looked to her left (north), stepped from the curb into a painted pedestrian crosswalk, and proceeded east to the center of Division street, in Spokane. She looked to her right (south), and saw two cars approaching which 'appeared to me to be a block or more away,' and continued east across the street. She was struck by the right front fender of an automobile, driven by Gerald Ellis, as it proceeded north on Division street. The point of impact was approximately 8 feet east of the center line of the street. Skid marks of 39 feet were measured by a member of the Spokane police department.

It was overcast and the visibility was poor. It was raining and the asphalt pavement was wet. The headlights of the automobile were burning and the windshield wiper was working. Mr. Ellis and three men, all employees of Brandt Brothers Roofing Company, owned by defendant Baumgartner, were in the automobile at the time of the accident.

Mr. Ellis testified that he was looking straight ahead through that portion of the windshield kept clear by the windshield wiper. He did not see Mrs. James until she was directly in front of the car, at which time he applied his brakes. He testified that he was traveling about 25 miles an hour.

Mr. Baumgartner testified that the union contract, under which he operated the business, requires that he furnish transportation for the men to the job, when they are working out of town. He said:

'We can use any transportation that we see fit to choose. Sometimes it is a bus, sometimes it is a train. Frequently it is a truck. In town it is a taxical quite frequently.'

When an employee uses his own automobile to go to an out-of-town job, the union agreement specifies that the employee be paid 10 cents a mile for the use of his car.

When asked if he had any control over the route that is followed by the man using his own car, Mr. Baumgartner replied:

'We sometimes for certain reasons might indicate a certain route in town. When it is out of town we do not indicate routes.'

The roofing company's place of business was on Main street, just off of Division street. The four men, including Mr. Novak, the foreman, had reported to the shop for work at 7:00 a. m. They were told that they would work that day, as they had the previous day, on a roofing job in Newport, Washington. Mr. Ellis' car had been used for transportation to Newport so the tools and work clothes of the men were already in his car. They left the shop by the usual route and proceeded north on Division street which leads to the main highway to Newport. Their trip was interrupted by the accident.

Mr. Ellis' pay commenced at 7:00 a. m. He was paid for travel time and 10 cents per mile for the use of his automobile, as he had been paid on previous occasions.

At the beginning of the trial, plaintiff voluntarily dismissed Mr. Ellis as a party defendant. The jury returned a verdict against Mr. and Mrs. Baumgartner. They appeal from the judgment entered against them. We will refer to Mr. Baumgartner and Mrs. James as though they are the only parties to this action.

Appellant waived his challenge to the sufficiency of plaintiff's evidence and his motion for dismissal, made at the close of plaintiff's case, by proceeding with the defense. Thompson v. City of Seattle, 1953, 42 Wash.2d 53, 58, 253 P.2d 625; Saffer v. Saffer, 1953, 42 Wash.2d 298, 301, 254 P.2d 746. Appellant's first assignment of error is not well taken.

Under appropriate assignments of error, appellant argues that there was a failure to prove primary negligence, on the part of the operator of the automobile, and that respondent was guilty of contributory negligence.

The trial court instructed that the traffic ordinance of the city of Spokane provided:

'Where traffic control signals are not in place or in operation, the operator of a vehicle shall yield the right of way, slowing down or stopping, if need be, to so yield to any pedestrian crossing the roadway within a marked crosswalk or within any unmarked crosswalk of any intersection.'

No exception was taken to this instruction. It became the law of the case. Ralston v. Vessey, Wash.1953, 260 P.2d 324. The evidence is undisputed that Mr. Ellis failed to yield the right of way to respondent, who was a pedestrian within a marked crosswalk. The violation by the driver of an automobile of traffic regulations prescribed by the state or municipality constitutes negligence per se. Ross v. Johnson, 1945, 22 Wash.2d 275, 285, 155 P.2d 486, and cases cited.

There is evidence that respondent looked to the north before stepping from the curb into the crosswalk, and that, upon reaching the center of the street, she looked to the south for northbound traffic. Under these circumstances, we cannot say, as a matter of law, that respondent was guilty of contributory negligence. Under proper instructions, it became a question of fact for the jury. Beireis v. Leslie, 1950, 35 Wash.2d 554, 560, 214 P.2d 194, and cases cited.

Appellant contends that there was (1) no proof of an employee-employer relationship at the time of the accident and (2) that there was a separate contract promulgated by union rules for transportation to and from out-of-town jobs, independent of the contract of employment. As a corollary of these contentions, appellant urges that instruction No. 10 was erroneous.

We cannot agree with appellant that there was no evidence of the existence of an employee-employer relationship at the time of the accident. Mr. Ellis had reported for work at 7:00 a. m. He was being paid for his time when the accident occurred and was under the direction of his foreman. Mr. Ellis was paid for the use of his car on the trip which served only the purpose of the employer.

Instruction No. 10, to which appellant assigns error, is as follows:

'[I.] You are instructed that the negligence of an employee is the negligence of his employer where such employee is...