Lubliner v. Ruge

• Decision Date: 28 November 1944
• Docket Number: 29350.
• Citation: 153 P.2d 694,21 Wn.2d 881
• Parties: LUBLINER v. RUGE et al.
• Court: Washington Supreme Court

153 P.2d 694

21 Wn.2d 881

LUBLINER v. RUGE et al.

No. 29350.

Supreme Court of Washington

November 28, 1944

Department 1.

Personal injury action by Carl Lubliner against Edward S. Ruge and others. From a judgment dismissing the action, plaintiff appeals.

Reversed and remanded with instructions.

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

Riddell & Riddell, of Seattle, for appellant.

Hyland Elvidge & Alvord, Monroe Watt, and Carkeek, Harris, Harris &amp Carroll, all of Seattle, for respondents.

GRADY, Justice.

This action was brought by Carl Lubliner against Edward S. Ruge and Edwin T. Kinerk and wife to recover damages for injuries sustained as the result of an automobile driven by Ruge coming in contact with him as he was traveling across a street intersection. The case was tried Before the court and a jury, and a verdict for the defendants was returned. Plaintiff has taken an appeal from the judgment entered dismissing his action. Mr. Ruge will be referred to as though he were the only respondent.

The physical situation was as follows: Pike street and Twelfth avenue intersected. Pike street ran approximately east and west and Twelfth avenue approximately north and south. At the intersection, the streets were each fifty-two feet wide between curbs. The light at the intersection had a total cycle of fifty seconds. The green light would be on for twenty-eight seconds for the north and southbound traffic on Twelfth avenue; then there would be an interval of three seconds when the light would be red all around. This was followed by sixteen seconds of a green light for the east and westbound traffic on Pike street, and then three seconds of red light all around.

On January 16, 1942, at about the hour of 6:45 in the evening appellant was walking east along the sidewalk on the south side of Pike street. As he was crossing Twelfth avenue he was struck by an automobile being driven by respondent in a southerly direction on the west side of Twelfth avenue. The appellant bases his action, so far as his appeal is concerned, upon the alleged negligence of respondent in driving the automobile into the intersection at an unlawful rate of speed and against the red light. There are other acts of negligence alleged, but the assignments of error do not involve them.

The defense is based upon the alleged contributory negligence of appellant, in that he entered the intersection against the red light and otherwise failed to exercise reasonable care for his own safety.

The appellant assigns as error that the court refused to permit him to refer in his opening statement to the jury and to prove that respondent had been drinking intoxicating liquor prior to the happening of the accident. The respondent contends that the proof of such fact was not admissible because it was not pleaded in the complaint, and appellant meets this by asserting that the condition of respondent arising out of the consumption of an intoxicant was evidentiary and it was not necessary to plead it.

The cases cited by appellant support the rule for which he contends, namely, that, if it appeared from the evidence that respondent was under the influence of intoxicating liquor at the time of the accident, such condition in and of itself would not constitute negligence, but could be considered by the jury as evidence bearing upon the question whether respondent was or was not guilty of one of the acts of negligence charged in the complaint, but in none of them does it appear that the question of pleading we now have Before us was raised or decided.

In deciding the question of pleading, we must take into consideration the foregoing rule, Rem.Rev.Stat. (Vol. 7A), § 6360-119, making it unlawful to operate any vehicle upon a public highway while under the influence of or affected by the use of intoxicating liquor; the general rule that a pleading should allege ultimate facts, and not contain evidentiary matter; and that the adverse party should be apprised of that with which he is charged as a basis of liability with sufficient certainty so as to enable him to prepare for and meet it at the trial of the action. A violation of the statute is negligence as a matter of law. When the violation of a statute is relied upon as a basis of negligence, such statute need not be set forth in the pleading, but the facts making the statute applicable must be alleged. Anderson v. Pantages Theatre Co., 114 Wash. 24, 194 P. 813. Evidence of being under the influence of or affected by the use of intoxicating liquor while driving an automobile or while doing any other act likely to do harm, is very damaging to one charged with negligence and he should be informed of such charge so as to be able to gather and submit proof to the contrary. We, therefore, state the rule to be that, when a party to an action contemplates submitting affirmative proof that, by reason of the use of intoxicating liquor, there was thereby a contribution to some act or omission which it is alleged constituted negligence, such fact must be pleaded by such party. This was the ruling of the trial judge, and he was correct in such action.

Assignments of error are directed at instructions given to the jury setting forth the respective duties of respondent and of appellant when entering the intersection. The factual situation upon which the instructions were based is to be gathered from the testimony of the appellant and Rosalee Gately, David Kinerk, and G. H. Holt, and such proper inferences as may be drawn from their testimony.

Miss Gately and Kinerk were riding in the front seat of the automobile with respondent, who was not present at the trial and did not testify by deposition. Holt, a bus driver, was in his bus, on the south side of Pike street, waiting for the light to change so he could proceed easterly. The appellant stated that he was walking east on the sidewalk on the south side of Pike street. As he reached the west side of Twelfth avenue, he stopped and waited for the intersection light to change to green. When the change came, he went forward and had progressed as far as about the center of Twelfth avenue when he stopped to make sure that an automobile in front of him and to his right would not move across his way. At that moment he was struck and remembered nothing further.

Miss Gately stated that, as the car driven by respondent approached the intersection, it was moving at the rate of about twenty-five miles an hour. Rain was falling. She saw a green light ahead. It changed to red all around just as the car was either right at or on the north crosswalk of Pike street. Respondent drove the car across Pike street and did not slacken its speed. She did not see the appellant, but felt an impact on the car.

David Kinerk stated that, as the car approached the intersection, it was moving at the rate of about twenty-five miles an hour. He saw a green light ahead when the car was a block or a block and a half from it. Rain was falling. The windshield swipe was working. The street was wet. When the car was about twenty or thirty feet from the north crosswalk in Pike street, the light changed to red. Respondent let up on the gas and went through the intersection at about the rate of twenty miles an hour. Kinerk did not see the appellant.

Holt, the bus driver, stated that he was waiting for the light to change. When it did, he started forward. He looked to the north and saw a car, approximately at the alley, coming south on Twelfth avenue at a high rate of speed, and, believing that the driver could not stop, he waited for him to pass. The driver of the car went through the intersection against the red light at a speed of about twenty to twenty-five miles an hour. Holt heard a loud noise and, when he looked, he saw that appellant had been struck. Rain had just started to fall, but not enough to require the use of a windshield swipe. The street was neither wet nor dry.

An exception was taken to instruction No. 15, but Rule 10 of this court was complied with only with reference to the following part: 'On the other hand, you are further instructed that it is negligence for a pedestrian to start across the street on the crosswalk while the automatic traffic signal is still red for traffic moving in the direction in which he seeks to cross, and that drivers of automobiles crossing said intersection in such case have the right to proceed through the intersection and assume that pedestrians will observe the light and obey the laws and will yield to them the right-of-way, until they see, or in the exercise of reasonable care should see, to the contrary.'

The appellant says in his brief: 'The entire evidence in this case is to the effect that the light was red against the automobile Before he entered the intersection, and there is no evidence in support of that portion of the instruction.'

This statement overlooks the testimony of Miss Gately to which we have referred. All the law cannot be stated in one instruction, and we think this instruction contemplates a situation in which the pedestrian moves against the red light and the automobile is moving with the green light. Viewed from this standpoint, the instruction is a correct statement of the...