Mickelson v. Fischer

• Decision Date: 12 September 1914
• Docket Number: 11827.
• Citation: 81 Wash. 423,142 P. 1160
• Parties: MICKELSON v. FISCHER et ux.
• Court: Washington Supreme Court

142 P. 1160

81 Wash. 423

MICKELSON v. FISCHER et ux.

No. 11827.

Supreme Court of Washington

September 12, 1914

Department 1. Appeal from Superior Court, King County.

Action by Anna Mickelson against George W. Fischer and another. Judgment for plaintiff, and defendants appeal. Affirmed on condition.

Alexander Dickinson and Peters & Powell, all of Seattle, for appellants.

Brightman Halverstadt & Tennant, of Seattle, for respondent.

CHADWICK J.

On the 15th day of December, 1912, at about 5 o'clock in the evening, plaintiff got off a south-bound street car at the intersection of Westlake avenue and Denny way in the city of Seattle. The car was of a type known as a 'single ender'; that is, the exits, front and rear, faced the right curb, so that it was impossible for a passenger to alight on the side next to the parallel street car track. Plaintiff stepped off the front end of the car, looked back toward the rear end where passengers were alighting from and entering the car, and, seeing no vehicles passed rapidly from the front end of the car toward the opposite side of the street. She had gone but a short distance when she was struck by the rear fender of defendants' machine and thrown to the pavement. She was pushed a few feet by the rear wheel of the machine, which had caught her dress, holding her helpless to protect herself. Defendant's version of the accident is: That he was coming south on the right-hand side of Westlake avenue. That when his machine came up to the street car, which had stopped and was discharging and taking on passengers, his chauffeur cut around the rear end of the street car to the left intending to pass it on the off side. Just as the machine passed the rear end of the street car, plaintiff came repidly, and without attention to her own safety, within the range of the lights on his machine. That both brakes were put on and the machine was steered further to the left. That the setting of the brakes and the turn of the machine to the left caused it to skid. That it turned nearly arround, and in so doing plaintiff was struck down, caught by her clothing, and pushed along, whether a greater or lesser distance, in substantially the same manner as is testified to by plaintiff and her witnesses. That the automobile was exceeding the speed limit was prescribed by ordinance seems to be admitted, but whether it was otherwise going so fast that it could not be readily controlled, and whether a horn was sounded and the lamps were lit and in order, are disputed facts. The case went to trial upon general denials and a charge of contributory negligence. From a verdict in the sum of $8,500, defendants have appealed.

The first assignment of error is that the court instructed the jury that the law does not require a pedestrian to stop, look, and listen when about to cross or while crossing a city street, but that plaintiff was bound to use ordinary care, and, although the jury found that she did not stop, look, or listen, that that fact would not necessarily constitute negligence on her part.

We have frequently said, and it is what every one knows, that cases of this kind speak their own law. There is no positive duty to stop, look, and listen when about to cross a city street, although the circumstances attending may be such as to charge a pedestrian with contributory negligence if he does not. Or, to state it in another way, the pedestrian is bound to use due care for his own safety; the measure of that care being dependent upon the attendant circumstances. The last expression of the court upon this phase of the case is to be found in Beeman v. Seattle Electric Co., 139 P. 1087. When applied to the facts, we find no error in the court's instructions.

Plaintiff was not bound to anticipate a car or other vehicle coming south on the left-hand side of the street. There are certain rules or laws of the road, the observance of which or reliance upon become instinctive. The care of a pedestrian, situate as plaintiff was, would be to look to her right for care or vehicles, relying upon the fact that traffic upon that side of the street would be from that direction. Defendant undertakes to distinquish the case of Lewis v. Taxicab Co., 72 Wash. 320, 130 P. 341, and Hillebrant v. Manz, 71 Wash. 250, 128 P. 892. In the one case it is said the pedestrian looked up and down the street. In the Lewis Case counsel say that the pedestrian was in full view of the driver of the automobile; that the driver could watch his movements and direct his machine accordingly, whereas in the case at bar it was dark, the driver could not see the course taken by the pedestrian, and as soon as he did see her he applied the brake. The fallacy of this argument lies in this: That the reason defendant did not see plaintiff is that the street car intervened and a thing happened which in law he was bound to anticipate (that is, that the street crossings would be used by pedestrians when cars are not passing or are stopped to discharge passengers), and by the same reasoning the thing happened which plaintiff was not bound to anticipate (that is, a vehicle coming at from 10 to 12 miles an hour on the wrong side of the street.) Defendant was in the wrong place; he was not obeying the law of the road as it appelies to crossing in city streets. In Segerstrom v. Lawrence, 64 Wash. 245, 116 P. 876, we held that a person may lawfully use what is to him the left side of the road, with the qualification, and defendant's case falls squarely within it:

'If there is no travel at that time upon that part of the way, or if the travel is not so heavy as to make his conduct a source of danger.'

Under the circumstances, it was clearly for the jury to say whether defendant was negligent and whether plaintiff was exercising due care for her own safety.

Although the jury were instructed that defendant might be on the left-hand side of the road under such conditions as are enumerated in the Segerstrom Case, it is earnestly contended that defendant has been prejudiced by the addition of the following:

' But if the defendant, at the time of the injury, was violating an ordinance of the city by being upon the left-hand side of the street, and was guilty of negligence, yet if the plaintiff, at the

...