Lanegan v. Crauford

• Decision Date: 05 December 1956
• Docket Number: No. 33827,33827
• Citation: 49 Wn.2d 562,304 P.2d 953
• Parties: Alvon LANEGAN, Appellant, v. Verne W. CRAUFORD and Zella F. Crauford, his wife, Respondents.
• Court: Washington Supreme Court

Page 562

49 Wn.2d 562

304 P.2d 953

Alvon LANEGAN, Appellant, v. Verne W. CRAUFORD and Zella F. Crauford, his wife, Respondents.

No. 33827.

Supreme Court of Washington, Department 1.

Dec. 5, 1956.

Sweet, Wolf & Merrick, Robert M. Elston, Seattle, for appellant.

Cosgrove, Terhune & Schlosstein, Seattle, for respondents.

FOSTER, Justice.

Appellant sued respondents for damages to her person and automobile resulting from an automobile accident at a light-controlled intersection in the city of Seattle. A verdict for fifteen hundred dollars was returned for appellant and thereafter vacated on respondent's motion for judgment n. o. v. In the same order, pursuant to Rule of Pleading, Practice and Procedure 14, 34A Wash.2d 78, a new trial was granted without, however, specifying any ground therefor as required by the next to the last paragraph of Rule of Superior Court 16, 34A Wash.2d 117, as amended effective July 1, 1954.

The accident occurred at the intersection of north 80th street and Aurora avenue in the city of Seattle. Aurora avenue is seventy-one feet between curbs and a multiple lane highway with three lanes each for both north and southbound traffic. It is intersected at right angles by north 80th street, which is thirty-two feet in width. This intersection is controlled by conventional signal lights. It is unnecessary to detail the evidence which is in sharp conflict other than to say that appellant entered the intersection from the west traveling east and that respondent entered the intersection from the south traveling north. The jury believed that appellant entered the intersection under the protection of the green light and that her forward progress was interrupted by cars ahead waiting to make a left turn to the north and that while her progress through the intersection was thus interrupted the signal lights changed; that respondent traveling the northbound third or curb lane entered the intersection under the protection of the green light controlling north and southbound traffic and collided with appellant's car near the north 80th east pedestrian crosswalk. Thus it is that there is substantial evidence that both cars were rightfully in the intersection.

Appellant assigns error in granting judgment n. o. v.; denying her motion to increase the amount of the verdict; giving instruction No. 9, presently noticed; and refusal to give appellant's requested instruction No. 6 respecting relative rights of the parties.

With commendable candor appellant's learned counsel states that the only question is whether there is sufficient evidence of respondent's negligence to sustain the verdict.

We are told by respondent both in oral argument and in the printed brief that there is no testimony that the appellant entered the intersection under the protection of the green light for east and west traffic. The same statement was made to the trial court which provoked the learned trial judge to say that the evidence was to the contrary. ¹ We find abundant evidence in the record that appellant did enter the intersection under the protection of the green light. (Appendix A) It may be said that there is strong evidence to the contrary but this presented a dispute of fact for the jury's determination.

The learned trial judge was of the opinion that the conclusion reached in Rockey v. Glacier Gravel Company, 34 Wash.2d 492, 209 P.2d 291, gave the respondent an absolute right of way to cross the intersection when the light turned green and that he had the right to assume that all others would accord him the right of way and so charged the jury in instruction No. 9 set out in the margin. ² Upon that view of the law the trial court granted the respondent's motion for judgment n. o. v.

We have no occasion to unsay anything said in Rockey v. Glacier Gravel Company, supra, but that case must be limited to the facts with which the court was then concerned. There, both cars lawfully entered the intersection under the protection of the green light traveling in opposite directions but the Heatlox car undertook a left turn directly in the path of the oncoming juggernaut of the Glacier Gravel Company without regard for the rights of the driver of that vehicle. Here, on the other hand, appellant entered the light-controlled intersection from the west and was lawfully in the intersection when her forward progress was blocked by preceding vehicular traffic. She did not attempt to turn directly in the path of an approaching car.

A green light is not a command to go, but only a limited permission to pass, having due regard for those already lawfully in the intersection. Fuss v. Williamson, 160 Neb. 141, 69 N.W.2d 539; Roland v. Murray, Ky., 239 S.W.2d 967; Leeper v. Nelson, 139 Cal.App.2d 65, 293 P.2d 111; Spence v. Carne, Tenn.App., 292 S.W.2d 438, 452.

Vehicles rightfully in a light-controlled intersection have a reasonable opportunity to clear the intersection. Freeman v. Churchill, 30 Cal.2d 453, 183 P.2d 4; Capillon v. Lengsfield, La.App., 171 So. 194; Leeper v. Nelson, 139 Cal.App.2d 65, 293 P.2d 111; Styskal v. Brickey, 158 Neb. 208, 62 N.W.2d 854; Fuss v. Williamson, 160 Neb. 141, 69 N.W.2d 539.

Such is the imperative command of the statute, Laws of 1951, chapter 56, § 3, p. 165, RCW 46.60.230.

'* * * But vehicular traffic, including vehicles turning right or left, shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited. * * *'

Indeed this court has held that a pedestrian so entering a light-controlled intersection has the right to complete the crossing after the signal has changed. Brunner v. John, 45 Wash.2d 341, 274 P.2d 581; Orme v. Watkins, 44 Wash.2d 325, 267 P.2d 681; Fedland v. Teshera, 40 Wash.2d 256, 242 P.2d 751.

The statute makes no distinction between the rights of motorists and pedestrians rightfully in a light-controlled intersection to complete the crossing after a change in the signal, nor do we perceive any reason for such a distinction.

The court was asked to charge the jury in appellant's requested instruction No. 6, that regardless of the fact that the defendant (respondent) entered the intersection under the protection of the green light, he was under a duty to observe traffic conditions and that failure to observe existing conditions and take necessary precautions would be negligence. This was a correct statement of the law and the refusal to give it or one similar was reversible error.

There remains the assignment of error in refusing to increase the amount of the verdict. The jury found respondent liable but awarded only fifteen hundred dollars damages. Respondent alone moved for a new trial while appellant moved to increase the amount of the verdict. Rule of Superior Court 16(5), 34A Wash.2d 117, and Laws of 1933, chapter 138, § 2, p. 482, Cf. RCW 4.76.030, authorize the conditional granting of a new trial if the trial court finds that the amount of the verdict is either so large or so small as to indicate 'passion or prejudice' and upon appeal the statute provides that the amount of the verdict is presumed to be correct unless this court finds from the record that the amount of the verdict was so excessive or inadequate as unmistakably to indicate 'passion or prejudice.' Such are the recent decisions. Orme v. Watkins, 44 Wash.2d 325, 267 P.2d 681; Anderson v. Dalton, 40 Wash.2d 894, 246 P.2d 853, 35 A.L.R.2d 302; Olson v. Weitz, 37 Wash.2d 70, 221 P.2d 537; Sunset Oil Company v. Vertner, 34 Wash.2d 268, 208 P.2d 906; Randall v. Tradewell Stores, Inc., 21 Wash.2d 742, 153 P.2d 286; Nagle v. Powell, 5 Wash.2d 215, 105 P.2d 1.

In the accident appellant was thrown against the steering wheel, ruptured a muscle in her right elbow and stretched the triceps tendon, resulting in three fourths of an inch of play in the forearm, and injured the ulnar nerve which required surgery. Moreover, she sustained a low back injury which an orthopedic specialist characterized as a 'traumatic lumbosacral syndrome.'

For approximately a year following the accident she was attended by her physician several times a week. While the elbow injury was extremely painful and resulted in swelling and discoloration and impairment of motion, the disability, nevertheless, persisted after a year's conservative treatment and on October 14, 1955, just three days short of a year, appellant consulted a specialist, who diagnosed an ulnar nerve injury with a resultant hyperhypesthesia of the ulnar nerve distribution; that is, a lack of sensitivity over the area supplied by that nerve. She had loss of power in the hand. Such injuries can only be relieved by surgery.

The tendon was surgically shortened to eliminate the play and the ulnar nerve explored and found to be bound down by adhesions, necessitating its transplantation from the natural to an exposed position which renders it more susceptible to injury. Six days' hospitalization was required. The arm...