Johnson v. Barnes, 35227

• Decision Date: 24 March 1960
• Docket Number: No. 35227,35227
• Citation: 55 Wn.2d 785,350 P.2d 471
• Parties: Edwin R. JOHNSON, as Guardian ad litem for Alice Johnson, a Minor, Respondent, v. Marion T. BARNES, Appellant.
• Court: Washington Supreme Court

Page 785

55 Wn.2d 785

350 P.2d 471

Edwin R. JOHNSON, as Guardian ad litem for Alice Johnson, a Minor, Respondent, v. Marion T. BARNES, Appellant.

No. 35227.

Supreme Court of Washington, Department 2.

March 24, 1960.

Parker & Parker, Aberdeen, for appellant.

Schumacher & Charette, Aberdeen, for respondent.

ROSELLINI, Judge.

The respondent recovered judgment in the trial court for injuries which his three-year-old daughter incurred when she ran into the side of an automobile driven by the appellant on an arterial street in Aberdeen. On appeal, error is assigned to the failure of the court to sustain various challenges to the sufficiency of the evidence, and to the giving of certain instructions and the refusal of others requested by the appellant.

The evidence most favorable to the respondent tended to show that at about five o'clock in the afternoon, on February 24, 1958, while it was still daylight, the appellant was driving her automobile west on West Sixth street, at a lawful rate of speed. She was familiar with the nature of the neighborhood, which was residential, and knew that children often played there. Two of the respondent's children, ages three and eight, had been sent to a grocery store a block or so east of their home on West Sixth street and were returning, walking west, as the appellant approached.

The eight-year-old child, a boy, had stopped to tie his shoe, while his sister went on ahead. He then crossed the street, seeing no traffic approaching, and proceeded on the north side of the street. His sister, catching sight of him, darted across the street toward him and ran into the side of the appellant's automobile.

The appellant did not see the child until the latter was only a few feet from the side of her automobile, when she immediately brought it to a stop, but too late to avoid the accident. The children had been in plain view for at least a quarter of a block, but she saw neither of them. There were no cars parked in the vicinity of the accident. An eyewitness, traveling east on West Sixth street, observed the younger child start across the street in front of him, and at the same time observed the appellant's automobile approaching from the other direction and that the driver did not appear to see the child. It was his impression that the appellant and her passenger were looking toward each other, as if they were talking. The appellant admitted that had she seen the child when she was two car lengths away from her, she could have stopped in time to avoid the accident. The fact that she stopped within a few feet when she did see the child, indicates that she could have avoided the accident had she observed the child when she started across the street.

The only obstructions in the parking strip were a few widely-spaced utility poles. The woman who was riding in the car with the appellant testified that she was sitting facing south and saw the child before the appellant saw her.

Upon this evidence, the jury could find that the appellant was not keeping a proper lookout for children, and that had she been looking, she would have seen the child in time to warn her or to stop her automobile before she reached the point where the child was crossing the street.

In the case of Nagala v. Warsing, 36 Wash.2d 615, 219 P.2d 603, 611, a small boy ran into the side of the defendant's truck, as he was crossing a highway to join his mother on the other side. In upholding a verdict for the plaintiff, we quoted with approval the following statement of the defendant's duty which the trial court made in its memorandum opinion:

"In the case at bar, vigilance on the part of the defendant would have disclosed the presence of the child at the side of the highway and vigilance would have disclosed the mother in the highway. If he had seen the child, under the authorities heretofore referred to, he could not drive on the assumption that the child would exercise the care to be expected of a person of mature judgment and experience. It was his duty to observe the child and, having seen him, it was his duty to have appreciated a dangerous situation, and to have stopped, or at least turned, so as to avoid an accident."

The authorities referred to in the quoted paragraph are cases which follow, and texts which recognize, the well-established rule that the driver of a vehicle of any kind is bound to anticipate the presence of children upon the public highway and to exercise reasonable diligence to avoid injuring them; and in so doing, he is not...