Lindberg v. Steele

Decision Date06 August 1940
Docket Number27891.
Citation5 Wn.2d 54,104 P.2d 940
CourtWashington Supreme Court
PartiesLINDBERG et ux. v. STEELE et ux.

Department 2.

Action by John E. Lindberg and Beldena C. Lindberg, his wife against Freddie Steele and Jane Doe Steele, his wife, to recover damages for personal injuries sustain by Blldena C Lindberg when struck by an automobile driven by Freddie Steele. From a judgment of dismissal, the plaintiffs appeal.

Reversed and remanded.

Appeal from Superior Court, King County; Roger J. Meakim, judge.

Little & Leader, of Seattle, for appellants.

A. L Lee, of Tacoma, and Ballinger, Hutson & Boldt, of Seattle, for respondents.

STEINERT Justice.

Plaintiffs, husband and wife, brought suit to recover damages for personal injuries sustained by the wife, a pedestrian, when struck by an automobile driven by defendant Freddie Steele. At the conclusion of plaintiffs' case, tried Before a jury, defendants moved for dismissal of the action on the ground that it appeared from the evidence that the pedestrian wife was guilty of contributory negligence as a matter of law. The motion was granted, judgment of dismissal was entered, and plaintiffs appealed.

For convenience, we shall refer to appellant Beldena C. Lindberg as though she were the sole appellant, and to respondent Freddie Steele as though he were the sole respondent.

The only question involved in this appeal is whether or not, under the evidence, appellant was guilty of contributory negligence as a mater of law.

A challenge to the sufficiency of the evidence, or a motion for nonsuit, admits the truth of the plaintiff's evidence and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, and in the light most favorable to plaintiff. Romano v. Short Line Stage Co., 142 Wash. 419, 253 P. 657; Weinman v. Puget Sound Power & Light Co., 175 Wash. 73, 26 P.2d 395; Buttnick v. J. & M., Inc., 186 Wash. 658, 59 P.2d 750; White v. Consolidated Freight Lines, 192 Wash. 146, 73 P.2d 358; Vercruysse v. Cascade Laundry Co., 193 Wash. 184, 74 P.2d 920; Perren v. Press, 196 Wash. 14, 81 P.2d 867; Gibson v. Spokane United Railways, 197 Wash. 58, 84 P.2d 349; Beck v. Dye, 200 Wash. 1, 92 P.2d 1113; Pyle v. Wilbert, Wash., 366, 98 P.2d 664.

In the determination of such challenge or motion, even though the plaintiff's evidence is in some respects unfavorable to her, she is not bound by the unfavorable portion of such evidence, but is entitled to have her case submitted to the jury on the basis of the evidence which is most favorable to her contention. Harris v. Saunders, 108 Wash. 195, 182 P. 949; Hahn v. Brickell, 140 Wash. 412, 249 P. 780; Quitslund v. Barton & Co., 143 Wash. 444, 255 P. 666; Weinman v. Puget Sound Power & Light Co., 175 Wash. 73, 26 P.2d 395.

Stated according to the requirements of these rules, appellant's evidence may be summarized as follows: East Madison street, in Seattle, is an arterial highway running in a northeasterly and southwesterly direction. In the vicinity of the place where the accident occurred, that street is forty-two feet in width from curb to curb. In the middle portion of the street is a double set of streetcar tracks. Eighteenth avenue crosses East Madison street in a northerly and southerly direction. Both streets are paved. From Seventeenth avenue, East Madison street slopes downward toward Eighteenth avenue at a grade of one per cent for a distance of about eighty feet, and then continues at a grade of three per cent for a distance of three hundred feet until it reaches the intersection with Eighteenth avenue; east of that intersection, East Madison street has a down grade of eight per cent. West of Seventeenth avenue, East Madison street is practically level for about one hundred and fifty feet, and then slopes toward the west at a pronounced grade. Vehicular traffic moving eastward on East Madison street thus ascends a hill until it reaches the vicinity of Seventeenth avenue, and then proceeds downhill to, and beyond, Eighteenth avenue. In the intersection of East Madison street and Eighteenth avenue is suspended a 100-watt overhead lamp.

At about 5:15 on a December evening, appellant, a woman sixty-three years of age, was walking northwardly along the sidewalk on the east side of Eighteenth avenue, approaching East Madison street. It had been raining earlier in the afternoon, but at the time of the accident the weather was clear and claim. Arriving at the southeast corner of the intersection, appellant paused, looked to her right and left, and waited until traffic had cleared in both directions. She then proceeded forward at a normal gait in the regularly allotted, though unmarked, marked, pedestrain crosswalk. In her progress toward the center line of East Madison street, appellant looked intermittently toward her left, but observed no traffic approaching. On reaching the second, or inside, rail of the eastbound streetcar track, she looked to her right to observe whether or not any traffic was approaching from that direction. Proceeding forward, she had reached the center line of East Madison street, and was in the act of stepping over the nearest rail of the westbound streetcar track when suddenly respondent's car, traveling eastwardly along East Madison street at a speed of approximately forty miles per hour, passed immediately in front of her, causing appellant to collide with the rear right side of the car, and throwing her to the pavement. Respondent had made no attempt to reduce his speed, nor had he given any warning of his approach. There was evidence that respondent's car had skidded on the streetcar rails, within the intersection, and had swerved toward the left immediately Before striking appellant. There was also evidence to the effect that respondent thought that appellant was proceeding toward the south, instead of toward the north, and that he was under the impression that he was passing behind her. In any event, respondent's car was on the wrong side of the street at the time of the impact.

Upon this evidence, it seems clear to us that appellant made a case for the jury, and that it cannot be held that she was guilty of contributory negligence as a matter of law.

If appellant is to be held guilty of contributory negligence as a matter of law, it must be, as respondent contends, either because she failed 'to take proper or any observation of approaching traffic,' or else, because she continued forward blindly at the moment that respondent's car was passing her, and walked directly against the side of his car.

We have repeatedly held that a pedestrian who, Before crossing a street at an intersection, looks for approaching traffic is not guilty of contributory negligence as a matter of law merely because he fails to look either continuously or for a second time while proceeding across. Such situations ordinarily present a question of fact to be determined by the jury. Olsen v. Peerless Laundry, 111 Wash. 660, 191 P. 756; Woodbury Hoquiam Water Co., 138 Wash. 254, 244 P. 565; Hooven v. Moen, 150 Wash. 8, 272 P. 50; Hiteshue v. Robinson, 170 Wash. 272, 16 P.2d 610; Ahrens v. Anderson, 186 Wash. 182, 57 P.2d 410; Shephard v. Smith, 198 Wash. 395, 88 P.2d 601.

In Ahrens v. Anderson, supra, we said [186 Wash. 182, 57 P.2d 412]: 'Whether a pedestrian, who Before crossing a street at a regular street crossing looks for traffic but fails to look again after starting to cross, is guilty of contributory negligence, depends on many circumstances and conditions, such as the amount of traffic, the distances of approaching vehicles, the necessity of observation in other directions, the existence of statutes or ordinances giving pedestrians the right of way, and other elements. The question is ordinarily one that must be decided as a question of fact, and not as a matter of law.'

It will be noted from our statement of the instant case that there was evidence that appellant looked to her left for traffic, not only while she was still at the curb but also intermittently during her progress across the street. Upon that evidence, there is even less reason for holding her guilty of contributory negligence as a matter of law than there would be if she had looked only while at the curb, and, conversely, greater reason for submitting the question to the jury.

With reference to respondent's contention that appellant was negligent in continuing forward blindly and walking directly into the...

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