Jerdal v. Sinclair

Citation342 P.2d 585,54 Wn.2d 565
Decision Date13 August 1959
Docket NumberNo. 34825,34825
PartiesPeter JERDAL, Respondent, v. R. T. SINCLAIR, a minor, and Robert B. Sinclair and Helen E. Sinclair, his wife, Appellants.
CourtUnited States State Supreme Court of Washington

Lewis S. Armstrong, Armstrong & Crane, Auburn, for appellants.

Metzger, Blair & Gardner, Tacoma, for respondent.

MALLERY, Judge.

This is an action for personal injuries to a pedestrian who was struck by an automobile about five o'clock p. m., on January 4, 1957. The defendant driver, R. T. Sinclair, is the minor son of defendants Robert B. Sinclair and Helen E. Sinclair, who are joined as defendants under the family-car doctrine. It was dark and cloudy, but the pavement was dry, when the son, alone in the car, entered North 26th street from a service station one block west of the scene of the accident. He turned left and proceeded east to Mason avenue on the south side of North 26th street at a speed of fifteen to twenty miles an hour. The plaintiff was crossing from the southwest corner to the northwest corner of North 26th street at its intersection with Mason avenue. He was struck by the extreme left side of the automobile's front bumper.

From a judgment entered on a verdict for the plaintiff, the defendants appeal.

Appellants contend that the respondent was guilty of contributory negligence as a matter of law for not having seen the approaching automobile. They seek to invoke the rule that one will not be heard to say that he looked, but did not see that which was there to be seen. The rule and the cases cited in support of it by the appellants are applicable in pedestrian cases where a plaintiff steps from a place of safety directly into the path of a driver who has no opportunity to avoid the impact. A different factual situation is presented here.

There was evidence from which the jury could have found that the respondent looked before he started to cross the street, that he had proceeded approximately twelve feet into the crosswalk when he was struck, that he walked slower than normal because of his limp, that the automobile was traveling at the rate of fifteen to twenty miles an hour, and that it did not change its direction of travel from straignt ahead or decrease its speed until after the impact.

Had the respondent seen the automobile, at the speed it was traveling and at the distance it had to be from him according to these facts, it was permissible for him to assume that the defendant driver could and would yield him the right of way as required by law. It was not negligence as a matter of law for the respondent to exercise his statutory right of way under these circumstances, and the jury had a right to find from them that he was not guilty of contributory negligence as a matter of fact.

The appellants assign as error the giving of instruction No. 11 because it is stated therein, regarding the duty of the driver of the automobile, that '* * * He still remains bound to anticipate that he may meet persons at any point of the street, * * *'

The appellants contend that the above statement instruction No. 11 should be qualified by the statement that 'the driver is entitled to assume that such persons will be obeying the law.'

Appellants' theory of law is correct. However, instructions must be construed together, and the desired qualification is found elsewhere in instruction No. 11, where the driver is charged with the duty to '* * * keep a proper lookout for them [persons] and keep his machine under such control as will enable him to avoid collision with other persons using proper care and caution, * * *' (Italics ours.)

Also, instruction No. 6 expresses the qualification in the following italicized language:

'You are instructed that automobiles have the right of way over pedestrians between street intersections and within intersection areas, except at crosswalks. Pedestrians have the right of way over automobiles while on marked or unmarked crosswalks. Each has the right to assume that the other will yield the right of way, in accordance with the rule just stated. * * *' (Italics ours.)

In view of these statements, it was not error to give instruction No. 11.

Appellants assign error to the trial court's failure to give their proposed instruction No. 7 upon the ground that it correctly outlines the agency theory of liability under the family-car doctrine.

The court instructed the jury in extenso upon the family-car doctrine in instruction No. 14, to which no assignment of error is directed, nor was any exception...

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12 cases
  • Xiao Ping Chen v. City of Seattle
    • United States
    • Washington Court of Appeals
    • December 28, 2009
    ...32 Wash.2d 217, 232, 201 P.2d 198 (1948); see also Jung v. York, 75 Wash.2d 195, 198, 449 P.2d 409 (1969) (citing Jerdal v. Sinclair, 54 Wash.2d 565, 342 P.2d 585 (1959)); Burnham v. Nehren, 7 Wash.App. 860, 864, 503 P.2d 122 (1972) (citing Shasky v. Burden, 78 Wash.2d 193, 470 P.2d 544 (19......
  • Campbell v. Paschal
    • United States
    • South Carolina Court of Appeals
    • May 28, 1986
    ...Pesqueira v. Talbot, 7 Ariz.App. 476, 441 P.2d 73 (1968); Smith v. Simpson, 260 N.C. 601, 133 S.E.2d 474 (1963); Jerdal v. Sinclair, 54 Wash.2d 565, 342 P.2d 585 (1959). The family purpose doctrine had its genesis in the law of agency. Norwood v. Partemos, 230 S.C. 207, 95 S.E.2d 168 (1956)......
  • Herman v. Magnuson
    • United States
    • North Dakota Supreme Court
    • March 22, 1979
    ...241 S.E.2d 838 (1978); Griffin v. Pancoast, 257 N.C. 52, 125 S.E.2d 310 (1962).21 We draw these considerations from Jerdal v. Sinclair, 54 Wash.2d 565, 342 P.2d 585 (1959), in which the court upheld a jury instruction designating these factors as important in the determination of ownership ......
  • Pesqueira v. Talbot
    • United States
    • Arizona Court of Appeals
    • May 9, 1968
    ...of Washington cited in the article at 8 A.L.R.3d 1209, Foran v. Kallio, 56 Wash.2d 769, 355 P.2d 544 (1960), and Jerdal v. Sinclair, 54 Wash.2d 565, 342 P.2d 585 (1959), the court set forth a test which would hold liable a parent who 'owned, Furnished, or maintained' a family car (emphasis ......
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