Ludwigs v. Dumas

• Citation: 129 P. 903,72 Wash. 68
• Parties: LUDWIGS v. DUMAS.
• Decision Date: 08 February 1913
• Court: United States State Supreme Court of Washington

129 P. 903

72 Wash. 68

LUDWIGS v. DUMAS.

Supreme Court of Washington

February 8, 1913

Department 1. Appeal from Superior Court, Walla Walla County; Thos. H Brents, Judge.

Action by George Ludwigs against J. L. Dumas. From a judgment for plaintiff, defendant appeals. Affirmed.

Sharpstein & Sharpstein, of Walla Walla, for appellant.

T. P. &amp C. C. Gose, of Walla Walla, for respondent.

MOUNT J.

The plaintiff brought this action to recover damages on account of personal injuries sustained by reason of having been run over by defendant's automobile. The complaint alleged that the defendant was running his automobile upon a street in the city of Walla Walla at a greater rate of speed than 10 miles per hour, and that while he was so running his automobile he so carelessly and negligently operated the same that it struck the plaintiff with great force, knocked him down, and ran over him, etc. The defendant denied these allegations, and pleaded contributory negligence of plaintiff. A jury trial resulted in a verdict and judgment in favor of the plaintiff for $1,250. The defendant has appealed.

He insists (1) that the court erred in refusing to direct a verdict in favor of the defendant at the close of all of the evidence; and (2) in giving to the jury the following instruction: 'I instruct you that it is unlawful for any person to drive or operate an automobile in the city of Walla Walla over any crossing or crosswalk at a rate of speed faster than one mile in fifteen minutes; that is, at a rate of speed faster than four miles per hour when any person is upon the same.' The facts in the case show that on the 8th day of July, 1911, the defendant was driving a new automobile south along Second street, in the city of Walla Walla. This street was a paved street running nearly north and south. The evidence is not clear whether he was driving upon the right or left side of the street. Plaintiff's witnesses say that he was upon the left, while the defendant's witnesses say he was upon the right side of the street. He was driving at about 10 miles per hour. He intended to turn into Newell street to his left. This street was an unimproved street; that is, it was not paved, but was commonly used by pedestrians upon the sidewalk on each side of the street, and by vehicles upon a well-beaten roadway about the center of the street. This street intersected Second avenue at right angles, running east and west. It was about 48 feet wide between the curbs of the pavement on Second street. The pavement upon Second street extended into Newell street to the property lines on each side of Second avenue, so that the pavement upon the entrance to Newell street from Second street was the same width of the parking strip and sidewalk on Second street. When the defendant was driving in his automobile south along Second street toward Newell street, he saw the plaintiff riding a bicycle also south about the middle of Second street. Plaintiff was 100 or 150 feet ahead of the defendant, both going in the same direction, and both going at about the same rate of speed. When the plaintiff came to Newell street, he at first intended to turn to his left along that street and ride his bicycle upon a path or sidewalk and go east upon the south side of that street; but he saw some persons upon the path or walk, and for that reason concluded to go upon the bicycle path along the north side of Newell street. At that time he had passed the north line of Newell street upon Second street, and was about the center of that street; so that in going to the north side his bicycle described a semicircle which brought him out of the line of Second street and upon the pavement between the curbs upon Newell street, going northerly upon the pavement where pedestrians crossed Newell street upon Second street. At this time plaintiff says he glanced up Second street and saw no one approaching. There was no one except plaintiff upon the crossing at that time. The defendant with his automobile in the meantime came down Second street and turned into Newell street. Neither party saw the other until it was too late to stop or avoid a collision. Defendant swerved his machine to the left, but the right front wheel of the automobile struck the plaintiff's bicycle about the front wheel, threw the plaintiff to the ground, and ran over and injured him. Before the defendant turned into Newell street, he shut off the power of his machine and slowed down some. The lot upon the...