Johnson v. Johnson

• Decision Date: 10 April 1915
• Docket Number: 12318.
• Citation: 85 Wash. 18,147 P. 649
• Parties: JOHNSON v. JOHNSON.
• Court: Washington Supreme Court

147 P. 649

85 Wash. 18

JOHNSON v. JOHNSON.

No. 12318.

Supreme Court of Washington

April 10, 1915

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Nora S. Johnson against Adolph O. Johnson. From a judgment for plaintiff, defendant appeals. Affirmed.

Saunders & Nelson, of Seattle, for appellant.

Walter S. Fulton, of Seattle, for respondent.

ELLIS J.

This is an action for damages resulting from personal injuries to a pedestrian struck by an automobile at a street crossing in the city of Seattle. It was stipulated in open court that the person driving the car was the minor son of the defendant and that for any negligence on the boy's part the father is liable. The accident happened on September 24, 1913, at about 9:30 o'clock in the evening, at the intersection of Fourth avenue, which runs north and south, and Spring street which runs east and west. Fourth avenue was well lighted by cluster lights. The plaintiff had walked from Third avenue to Fourth avenue along the north side of Spring street. She testified as follows:

'When I got to the corner, I looked right and left, as is my custom, and I saw the lights of an auto which apparently had just crossed the Madison street track. I started across and apparently was nearly across when I realized an explosion or something. There was just a bright glare of lights around me, and I knew nothing more. In crossing Fourth avenue, I was on the north side of the street, right on the crossing. I noticed nothing unusual in the approach of the machine. I saw the lights and there was nothing unusual. I saw it as it had apparently crossed Madison, and, had it been traveling at the usual rate of speed, I would have thought I could have gone over and back. I started with no apprehension of danger at all, nor paid no attention to the approach of the machine. There was nothing unusual about it. I had no notice or warning of the approach of the machine. I saw those lights of the machine, and the next I knew there was a flare of light. I was struck. * * * I did not hear any sound emitted from this machine as it approached me, as I was going across the street, nor any sound of any nature whatever. When I did notice this machine it had evidently just crossed the Madison street car line, a block away.'

Another witness testified as follows:

'I saw an automobile cross Madison street going north on the east side of Fourth avenue. My attention was first attracted to it by the noise it was making coming up the street. I first noticed it just before it reached Madison street. The muffler was wide open, and, as you know, it makes a loud report when it is going fast. There was a Madison street cable car going up. I was watching, as I was expecting a person on that car. This machine passed by this car just in time to avert an accident. That was the first that attracted my attention, was the noise of the machine on the street, coming up the street. The machine was running not a bit less than 35 miles an hour, and I dare say 40. I was standing at Spring and Fourth avenue. That is one block north of Madison street. I was on the west side of the street. I noticed Mrs. Johnson, did not know who she was at the time, but this lady crossing the street, going east on Fourth avenue at Spring street. The machine struck her, and, from where it struck her to where she landed, I should imagine it was 100 feet or more. She was on the north side of Spring street, and I was on the south side. There was no signal whatever given, by horn or any signal. After the machine struck Mrs. Johnson, it slowed down to, I should imagine, 15 or 18 miles an hour, and then the occupants looked back, threw in their clutch, and proceeded on their journey.'

He also testified that the collision took place right at the crossing, and that when he first heard the automobile he thought it was a fire wagon coming up the street.

Another witness, who at the time of the accident was sitting at a window on the third floor of the Kerma Hotel, located on Fourth avenue some distance north of its intersection with Spring street, testified that he heard something that sounded like a collision, 'as if a machine or something had run into a wagon or street car'; that he looked out of the window and saw the plaintiff lying in the street directly in front of the window and an automobile going down the street to the north; that in his judgment the automobile was going about 30 miles an hour; that he did not hear any noise of the machine at all except that made by the collision.

The boy, a youth of 16, who was driving the automobile, and two other witnesses, testified that the machine was running at from 10 to 20 miles an hour; that it was making considerable noise; and that the accident happened in front of the Kerma Hotel some distance north of Spring street. None of these, nor any other witness, testified that any horn was sounded or other alarm given.

In response to special interrogatories, the jury found: (1) That the plaintiff was walking east when the accident occurred as she was crossing Fourth avenue; (2) that she was struck at the intersection of Fourth avenue with Spring street; (3) that she was not struck at the place where she was found in the street after the accident. The jury also returned a general verdict in favor of the plaintiff and against the defendant in the sum of $3,500. At appropriate times the defendant moved the court for a nonsuit, for a verdict in his favor upon all the evidence, and for a new trial. These motions were overruled. Judgment was entered upon the verdict. The defendant appeals.

No question is raised touching the court's instructions. We must assume that, if the cause was one for the jury on the evidence, the instructions correctly stated the law and all of the law applicable.

It is conceded by the appellant that all his assignments of error raise the single contention that the respondent was guilty of contributory negligence sufficient as a matter of law to bar her from recovery. It is further conceded that in passing upon this question we must consider, not only the literal statements of witnesses, but every justifiable inference favorable to the respondent which may be drawn therefrom. Brown v. Walla Walla, 76 Wash. 670, 136 P. 1166; Hillebrant v. Manz, 71 Wash. 250, 128 P. 892; King v. Page Lumber Co., 66 Wash. 123, 119 P. 180; Young v. Aloha Lumber Co., 63 Wash. 600, 116 P. 4.

The appellant asserts that applying this rule the following facts must be taken as true:

'(1) That the automobile, coming from the south and proceeding north along the east or right-hand side of Fourth avenue, approached and ran over the crossing at a high and unlawful rate of speed; (2) that no horn was blown as the automobile approached the crossing; (3) that the driver of the sutomobile was, in fact, negligent at the time and the place of collision, and that his negligence was the proximate cause of the injury; (4) that the plaintiff, while crossing from the west to the east side of Fourth avenue at the intersection of Spring street with the avenue, was struck, where as a pedestrian she had right of way over the automobile; (5) that the collision occurred in the nighttime; (6) that at the time of the collision the automobile was running with brilliant headlights burning, throwing rays approximately 150 feet ahead of it; (7) that at the time of the collision, and for more than one block before it occurred, the automobile was making a great deal of noise by reason of the fact that the muffler was open, so much noise that it resembled a fire engine; (8) that there were no vehicles or other obstructions in the street whatever to intercept the view of the automobile by the plaintiff; (9) that, when the plaintiff reached the northwest corner of Spring street and Fourth avenue, she looked both ways and observed the lights of the auto about a block to the south on Fourth avenue; (10) that she started across, and was nearly across Fourth avenue when she found herself in a glare of lights around her and was struck; (11) that she had noticed nothing unusual in the approach of the automobile; (12) that she estimated when she saw it that, had it been traveling at the usual rate of speed, she would have had time to go across the street and back; (13) that she then started with no apprehension of danger and paid no attention to the approach of the machine; (14) that she is a person of normal faculties with no impairment of sight or hearing; (15) that she was neither confused nor distracted by any other circumstances, and that nothing whatever came between her and the approaching automobile or distracted her attention, or in any way prevented her from glancing in the direction of its approach and governing her progress by its actual, rather than by its presumed, movements.'

We shall pass the third concession, which, if taken literally, would dispose of the case, since, if it be conceded that the appellant's negligence was the proximate cause of the injury, then any negligence on respondent's part would be merely a condition and not a contributing or efficient cause of the injury. This was a question for the jury.

'When the defendant's negligence is the proximate cause of the injury, while that of the plaintiff is only a remote cause or a mere condition of it, the action

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