Lundgren v. Kieren
| Decision Date | 25 June 1964 |
| Docket Number | No. 37105,37105 |
| Citation | 393 P.2d 625,64 Wn.2d 672 |
| Court | Washington Supreme Court |
| Parties | Everett LUNDGREN, Incompetent, by his quardian ad litem, Magna Lundgren, Appellant, v. Richard KIEREN and Jane Doe Kieren, his wife, Respondents. |
Torbenson, Thatcher, Stevenson & Burns, Robert Stevenson, Seattle, for appellant.
Kahin, Horswill, Keller, Rohrback, Waldo & Moren, Seattle, for respondents.
November 17, 1960, at approximately 7:30 a. m., Everett Lundgren, aged 35, started to run across the highway from the west side of the pedestrian lane on Empire Way South in Seattle, at the intersection of South Columbian Way, after the controlled traffic signal had turned red for him and green for vehicular traffic. It was dark and raining; motorists were using headlights and windshield swipes. Several automobiles in the curb lane for southbound traffic had stopped for the signal light at the north side of the intersection. When the signal light turned green, the automobiles in the curb lane started across the intersection.
Richard Kieren was driving the lead automobile southbound in the inside lane. The automobiles in the curb lane were ahead of, beside, and behind him. As he approached the South Columbian Way pedestrian lane, his view of the lane to his right was obstructed by the automobile in front of him in the curb lane. As the lead automobile in the curb lane slowed at the pedestrian lane, Mr. Kieren then saw Everett Lundgren crossing the highway at a 'dead run.' He applied the brakes, but was unable to stop before striking and injuring him.
Everett Lundgren, through his guardian ad litem, commenced this action against Richard Kieren and wife to recover for his injuries, alleging the following acts of negligence:
'(1) In driving his automobile at an excessive rate of speed for the conditions then and there existing;
'(2) In failing to keep a lookout and observe other traffic at said intersection and failing to observe and keep a lookout for the plaintiff herein;
'(3) In failing to yield right of way to the plaintiff herein at said crossing;
'(4) In failing to exercise reasonable care under the circumstances then and there existing to observe and watch out for the plaintiff when defendant's vision was obscured and/or impaired by another vehicle to his right;
'(5) In failing to keep his automobile under proper control or any control whatsoever.'
Richard Kieren alleged that he is single, and he will hereafter be referred to as the sole defendant. His answer denied negligence and alleged that Everett Lundgren was injured as a direct and proximate result of his own negligence in running across Empire Way South against the red traffic light, and without looking out for vehicular traffic. One deposition and eleven affidavits of witnesses who saw the accident, or the manner in which the automobiles on the highway at that time and place were being driven, were filed.
The defendant submitted written interrogatories to the plaintiff, one of which was as follows:
' Plaintiff's answer to this interrogatory was 'I don't know of any.'
Upon defendant's motion for summary judgment, the court dismissed the claim with prejudice. Plaintiff appeals.
Appellant's sole assignment of error is:
'The trial court should not have granted summary judgment because the defendant's speed, observation and care present jury questions as to negligence.'
A resume of the undisputed material facts, as shown by the affidavits and deposition filed, is as follows:
Everett Lundgren attempted to run across Empire Way South against the red light at a traffic-controlled intersection to catch a bus which was stopped for passengers on the east side of Empire Way South at the South Columbian Way intersection. Several passengers in the bus saw Everett Lundgren run squarely in front of the automobile driven by respondent, whose view of the pedestrian lane to his right was obstructed by an automobile larger than his Corvair. Respondent was proceeding across the intersection at a lawful rate of speed. He first observed Everett Lundgren, over the hood of the automobile to his right, crossing the highway at a 'dead run,' when his automobile was only a few feet from the crosswalk. He applied the brakes, but was unable to stop in time to avoid striking Everett Lundgren. A Seattle police officer was traveling south a few car lengths behind respondent's automobile. He inspected the brakes on the Corvair and found them to be in good condition, and stated that respondent had stopped approximately twelve paces from the point of impact. None of the above facts is controverted.
This appeal involves the duty of care a motorist must exercise as he approaches a pedestrian lane at a controlled intersection, when the traffic signal is red for pedestrians annd green for vehicular travel. Under such circumstances, the motorist, by virtue of the green traffic signal light, has the right of way. He has a right to assume that pedestrians will not cross the street in violation of the traffic signal. Lubliner v. Ruge, 21 Wash.2d 881, 886, 153 P.2d 694 (1944). This presumption continues until he sees or, in the exercise of reasonable care, should have seen that a pedestrian was failing to yield the right of way. Lubliner v. Ruge, supra.
When a driver, proceeding at a lawful speed and exercising due care for the safety of others, is confronted with an emergency not of his own making, he has a duty to act as would a reasonably prudent person under the circumstances then confronting him, and to try to avoid an accident. Ruff v. Fruit Delivery Co., 22 Wash.2d 708, 721, 157 P.2d 730 (1945), and cases cited. The undisputed facts in the instant case establish that the respondent exercised the full duty of care required of him, and that he was not negligent.
Appellant relies upon the following provisions of RCW 46.60.250:
'Whenever any vehicle is stopped at a marked crosswalk * * * at an...
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