La Moreaux v. Fosket
| Decision Date | 30 August 1954 |
| Docket Number | No. 32709,32709 |
| Citation | 45 Wn.2d 249,273 P.2d 795 |
| Parties | LA MOREAUX et al. v. FOSKET et ux. |
| Court | Washington Supreme Court |
McDowell & McDowell, Seattle, Robert F. Murray, Wenatchee, for appellants.
Hughes & Jeffers, Wenatchee, for respondents.
Donald D. LaMoreaux, individually, and as guardian ad litem, commenced action against Reverend S. E. Fosket and wife, for damages sustained by his infant daughter Christie Lou, when she was run over and injured by an automobile driven by Rev. Fosket. At the close of the testimony, the trial court, feeling that no negligence had been proved, directed a verdict in favor of defendants. This appeal follows.
A challenge to the sufficiency of the evidence, a motion for nonsuit, or a motion for a directed verdict, admits the truth of the plaintiff's evidence and all inferences reasonably to be drawn therefrom, and requires that the evidence be insterpreted most strongly against the defendant and in the light most favorable to the plaintiff. Olsen v. White, 37 Wash.2d 62, 221 P.2d 542. We shall be governed by the above rule in our approach to the problem involved in this appeal. Fortunately, we shall experience little difficulty because there is practically no dispute in the evidence.
The accident occurred August 26, 1950 at the home of Jess Neeley, located on Crawford street in Wenatchee. The house faced south. Attached to the house on the east was a garage, in front of which was an eight foot driveway which extended twenty-two feet eight inches to the street. Directly to the east of the garage was a small family orchard operated by Neeley. A clothes line was in the orchard hung between two apples trees. Between the driveway and the clothes line was a water ditch which extended to a pump and water hole close to the street.
Rev. Fosket is the minister of the Free Methodist Church in Wenatchee. Mr. Neeley was one of his parishioners and he had visited the Neeley home a number of times. Mr. Neeley's daughter, Alteene LaMoreaux, and her daughter, Christie Lou, had been with him for about eight months prior to the accident. Christie Lou, at the time of the accident, was eleven months old. She had been walking for two or three months and could walk fairly well. Rev. Fosket had visited on several occasions during the eight months that the child was there and had played with her, although he had never seen her walk until the occasion in question. He testified that she walked very well for a year old child; that she was quite steady on her feet. The mother testified that the defendant had never particularly made over the child; that there was no particular adoration on her part for him.
On the day of the accident, Rev. Fosket drove up to the house to see Mr. Neeley. The LaMoreaux car was parked in the driveway. Mr. Neeley's truck was parked in front of the house at the extreme west of the property line. Rev Fosket drove up back of the truck and parked his car, headed westerly. He got out and went into the yard looking for Mr. Neeley, who was not there. He found Mrs. LaMoreaux hanging clothes on the clothes line east of the garage. Christie Lou was there, walking back and forth between the garage and the clothes line. He talked to Mrs. LaMoreaux for about ten minutes and then walked back to the street around the rear of his car, got into the driver's seat on the lift hand side and proceeded to back his car. When he had backed up about a car length, he felt a bump, stopped, looked out and saw Christie Loulying in front of his left front wheel. She was seriously injured. He testified:
* * *'
'Q. You may take the stand again. Approximately how long did this conversation last? A. Approximately five minutes, five to ten minutes. I couldn't say for sure about that.
'Q. Did you notice the child during the time you were conversing with Mrs. LaMoreaux? A. Yes, I did.
'Q. Where was the child? A. Playing between the house and us, along back and forth, and just running back and forth there, playing there by the house.
'Q. By 'running back and forth' will you indicate what you mean by that? A. Well, it wasn't standing still. It was moving around, out by its mother and back over to the house. Well, just moving around there in the immediate vicinity of where we were.
'
'
Mr. Neeley, who was not present during the visit, drew a map which was introduced as Exhibit 1. The map showed the course which Rev. Fosket took as going to the west of the LaMoreaux car, rather than to the east, as he had testified. It also showed the position of the car after the accident as having backed toward the driveway, rather than in the other direction into the street.
Mrs. LaMoreaux testified:
'Mr. Hughes: And isn't it also true that you were so shocked and excited that you didn't take any particular notice as to which way the back end of the car was twisted? The Witness: Well, I noticed the way his car was in there, naturally. You couldn't help but see it.
'Mr. Hughes: That's correct, but as to just exactly whether it was as this diagram indicates with the right rear wheel up in your father's driveway--The Witness: (interrupting) Well, I couldn't say for positive, no.
'Mr. Hughes: In other words, your testimony, as I understand, is that the car had backed up to pull out in the street, but just what the exact position of it was, you are just not sure, are you? The Witness: That's right.
'Mr. Hughes: One other thing, you didn't actually follow the path Reverend Fosket took to get back to his car after he left you out at the clothes lines? The Witness: He came this way.
'Mr. Hughes: I am asking if you actually followed him with your eyes when he walked out to his car? The Witness: No, I didn't.
'Mr. Hughes: In fact you didn't pay any attention to him at the time he left you at the clothes line until after the car stopped? The Witness: That is correct.
'Mr. Hughes: Then you don't know which side of your car he walked on? The Witness: Well,
'Mr. Hughes: Answer 'Yes' or 'No'. The witness: No.
From the testimony of the only two eye witnesses, there is no dispute that Rev. Fosket walked to the east of the LaMoreaux car and that he backed his car toward the street, rather than toward the driveway.
As to the conversation with Rev. Fosket, Mrs. LaMoreaux testified:
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