Jensen v. Culbert
| Decision Date | 25 May 1925 |
| Docket Number | 19041. |
| Citation | 134 Wash. 599,236 P. 101 |
| Court | Washington Supreme Court |
| Parties | JENSEN v. CULBERT. |
Department 1.
Appeal from Superior Court, Spokane County; Huneke, Judge.
Action by Florence Jensen, administratrix of Elizabeth Couch deceased, against R. W. Culbert. Judgment for plaintiff, and defendant appeals. Affirmed.
Graves Kizer & Graves, of Spokane, for appellant.
Powell & Herman, of Spokane, for respondent.
This is a personal injury suit. During darkness the defendant was driving his automobile westerly along Indiana street, in the city of Spokane. It is paved and is a busy thoroughfare. At the same time plaintiff's intestate was crossing Indiana street in the line of the sidewalk on the westerly side of Stevens street, which intersects Indiana street at right angles. When deceased had reached a point about 14 or 15 feet from the northerly curb of Indiana street, she was struck by the front of defendant's automobile and in a few minutes died from the injuries she received. Stevens street was unpaved. The time of the accident was about 5:30 or 6 o'clock in the afternoon of a day in the latter part of November, 1923. The deceased left surviving her Eleanor M Feldman, age 34, Jane M. Grove, age 32, Florence Jensen, age 29, Joseph Couch, age 26, Edward Couch, age 19, Willa Wilgus, age 18, and Ellis Couch, age 13. Florence Jensen, a daughter, was appointed administratrix of the estate of the deceased and brought this action in her representative capacity, for the benefit of the children of decedent. The case was tried by the court without a jury. Judgment was entered against the defendant in the sum of $1,500 for the benefit of Ellis Couch and $1,500 for the benefit of Florence Jensen.
The appellant first contends that the evidence fails to show any actionable negligence on his part. There is very little dispute in the testimony. He was driving at the rate of from 15 to 20 miles an hour. His headlights were burning. He did not sound any horn or give any other warning of his approach to the street intersection in question. He was driving on the right-hand side of the street but from 12 to 15 feet away from his right-hand curb. At the time of the injury there was very little traffic on Indiana street. There were no street lights in the immediate vicinity of this intersection. He testified that, notwithstanding he was driving carefully and keeping a lookout in front of him, he did not see the deceased until she suddenly appeared out of the darkness in front of his car; that his seeing her and the automobile striking her were almost simultaneous; that as soon as he saw her he made every effort to stop his car, which he did within about 15 feet.
An ordinance of the city of Spokane fixes the maximum speed between intersections of streets at 20 miles an hour, and a maximum speed at street intersections of 12 miles an hour. Another ordinance gives pedestrians the right of way at street intersections.
Appellant admits that he was driving at a speed in excess of that permitted by the city ordinance, but contends that that fact was not the proximate cause of the injury. We can hardly accept this view. If he had been driving within the city ordinances, the deceased might have cleared the path of the automobile and not been injured, or appellant might have been able to stop his car before hitting the deceased or, at any rate, so slowed it down as to have struck her but a light blow.
But it seems to us that there is even clearer negligence on his part in other respects. Section 6334 Rem. Comp. Stat. requires front lights on automobiles to be sufficient 'to reveal objects at least 150 ahead thereof and 10 feet on either side of the center line of said vehicle measured at a distance of 10 feet in front thereof.' While it seems to be conceded that appellant's lights were hardly sufficient to comply with the provisions of this statute, they were sufficient that at a distance of 50 feet from the car the diffusion of light was about 8 1/2 feet and at 60 feet about 9 1/2 feet and at 75 feet about 12 1/2 feet on each side of the center of the car. Of course, as the distance from the car increased the diffusion of the lights also increased. When the deceased was struck she was some 14 or 15 feet out in the street from the curbing which she had left. It is plain from these facts that the deceased could not have stepped suddenly out of the darkness in front of the appellant's car. The wide sweep of his front lights would necessarily have revealed her to him considerably before she got in the line of the automobile. The very purpose of the statute in requiring front lights to be diffused is to give the driver an opportunity to see objects approaching from either side. Under these circumstances appellant was bound to see deceased before she came directly in front of the car and, having seen her, he was bound to stop, give warning of his approach or to swerve his car in an effort to avoid her. It seems to us that the trial court was justified in finding that the appellant had been guilty of negligence.
Probably the more difficult question is appellant's contention that the deceased was guilty of contributory negligence. There is no testimony to the effect that the deceased, before stepping into the street from the sidewalk, did not look to her left for approaching vehicles. Contributory negligence is a matter of defense. We must therefore assume that she did what an ordinarily prudent person would have done and that is, looked to the left for the approach of vehicles. The testimony shows, as we have stated, that the appellant was driving at the rate of from 15 to 20 miles an hour, and it is fair to presume that the deceased (who was 52 years of age and somewhat fieshy) was walking at the rate of about 2 miles per hour. In other words, the appellant was driving some 8 or 9 times as fast as the deceased was walking. She was injured when she was 14 or 15 feet out from the sidewalk. Under these circumstances, when the deceased looked for approaching automobiles before the left the sidewalk and stepped into...
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...644, 96 A.L.R. 782; McDonald v. Wickstrand, 206 Wis. 58, 238 N.W. 820; Elmberg v. Pielow, 113 Wash. 589, 194 P. 549. In Jensen v. Culbert, 134 Wash. 599, 236 P. 101, a similar ordinance, where a pedestrian stepped into the street when the defendant's automobile must have been more than 100 ......
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