Nagala v. Warsing

• Court: Washington Supreme Court
• Writing for the Court: ROBINSON
• Citation: Nagala v. Warsing, 219 P.2d 603, 36 Wn.2d 615 (Wash. 1950)
• Decision Date: 23 June 1950
• Docket Number: 30979.
• Parties: NAGALA, v. WARSING et al.

219 P.2d 603

36 Wn.2d 615

NAGALA, v. WARSING et al.

No. 30979.

Supreme Court of Washington.

June 23, 1950

Department 2.

Forest & Forest, Sequim, Thomas E. Grady Jr., Yakima, for appellants.

Olson &amp Palmer, Yakima, for respondent.

ROBINSON, Justice.

This is an appeal from a judgment entered in the superior court of Yakima county an action brought by Donald Ray Nagala, a minor through his father as his guardian ad litem, against the Yakima Grocery Company and Herman Warsing, to recover damages for personal injuries sustained as a result of his coming in contact with the large van of a delivery truck, at the time being driven by Herman Warsing as an employee of the grocery company. The jury returned a verdict of $8,908.60 against the defendants and each of them. Defendants moved for judgment notwithstanding the verdict and, in the alternative, for a new trial. In due course, the motions were argued and denied, and judgment entered in accordance with the verdict. From that judgment, the defendants promptly perfected this appeal.

In this opinion, we will, for convenience, refer to the child-plaintiff as the respondent, and the appellants in the singular as if Warsing were the only appellant.

Although the statement of facts contains a great deal of testimony, it does not establish exactly how the accident occurred. No bystander saw the truck come in contact with the boy, and it appears from Warsing's own evidence that he did not see the respondent either Before or after the accident. However, the appellant stoutly contends that the respondent boy, who was but three years and ten months old at the time, simply walked or ran into the overhanging van of the grocery truck as it was passing him on the street. That theory appears to be based upon testimony given by Raymond Frye, an officer of the state patrol, that, upon examination of the truck the day after the accident, he found 'a light brown hair' adhering to the side of the van, about eighteen inches from the rear thereof. This does not appear to have much, if any, probative significance, since, although the boy's skull was fractured at the point on his forehead where his hair was parted, we find no testimony in the record that his hair was light brown either at the time of the injury or at the time of the trial. Furthermore, officer Frye did not say on which side of the van the hair was found. We think, however, that the evidence in the case fairly indicates that the boy was not injured by coming in contact with the front of the truck.

The accident occurred on the Power House road just outside the city limits of Yakima, near the intersection of that road and Franklin avenue, which is a black-top highway extending northerly and southerly, and intersects Power House road at a right angle. Power House road is paved with concrete to a width of eighteen feet. There is a dirt shoulder on its north side which is used by the residents of the vicinity as a sidewalk. The shoulder slopes to a shallow drain ditch. The testimony is in conflict as to whether or not there were tall weeds growing in the ditch or on the shoulder. There was a designated bus stop at the southwest corner of the intersection.

Mrs. Nagala testified that, on the morning the accident happened, she found it necessary to take a 9:50 bus at that stop in order to keep an appointment in downtown Yakima. The Nagalas lived in a house north of the Power House road, slightly more than a half block west of the intersection. She left her home shortly Before the bus was due, taking little Donald, then three years and ten months old, with her. They walked down the north shoulder of the Power House road nearly to the intersection, and then cut across the road to the bus stop on the southwest corner. As she and the boy were standing near the bus stop, a little girl playmate of Donald's, who lived in that neighborhood, appeared on the other side of the road, that is, at the northwest corner of the intersection, and called to the boy and he ran over to her. Suddenly, the little girl ran across the street to the bus stop where Mrs. Nagala was standing. Mrs. Nagala further testified that there was traffic coming on the road from both directions, and she called and motioned to the boy to stay where he was, that is, at the northwest corner of the intersection. She further testified that she was particularly concerned with the truck coming from the west and stepped out in the roadway and pointed it out to the boy and told him to stay where he was until that truck passed. The driver of that truck signalled that he was about to make a right turn and sounded his horn as a warning and she had to step back off the road so that he could do so. That truck was driven by Richard Walker, who was en route to his home on Franklin avenue about a quarter of a mile south of the intersection. Walker was called as a witness at the trial, and his testimony corroborated a great deal of the testimony of Mrs. Nagala, stating that, as he approached the intersection, he saw her standing on the shoulder of the road at the southwest corner, and further saying: 'A. And something brings to my mind that there was a small girl standing beside her or behind her, and I believe I saw a small boy on the northwest side of the intersection--near the intersection, at least.'

As the Walker truck was approaching the intersection from the west, Warsing, driving the grocery truck, was approaching it from the east. Warsing, when called as an adverse witness by the attorneys for the plaintiff, testified that it was a clear day and the pavement was dry; that the truck he was driving was five feet wide but had a large overhanging van which was 'perhaps six feet in width'; that, as he was about two hundred yards from the intersection, he was driving about twenty-five miles an hour, but at that point he saw a truck approaching the intersection from the west (the Walker truck), and that he slowed down, not knowing which was the approaching truck might turn at the intersection; that, when Walker was making his right turn at the intersection, he (Warsing) had arrived at a point fifty or sixty feet east of it. He was asked if he saw a small child on the north side of the Power House road, and he replied, 'No.' He was also asked if he saw a woman standing on the pavement after the Walker truck had passed, and again answered, 'No.' He further testified that, as he had slowed down a little on account of the Walker truck, he went through the intersection at about twenty-two or twenty-three miles an hour. He further testified that he did not see Mrs. Nagala or the small boy as he passed through the intersection.

'Q. And did you ever see the little boy? A. Not until--until I got beyond, about where--I should judge around about a hundred feet or so. Then I just happened to see something come out of a ditch there, that's what I call it.

'Q. You say you were about a hundred feet past the intersection? A. Something like that.

'Q. When you saw something where? A. On my right side.'

Exhibit No. 1 is a large plat of the intersection, drawn to scale, and stipulated by the parties to the action to be a correct portrayal of what it purported to represent. Respondent's counsel, who had called Warsing as an adverse witness, after telling him that the plat was drawn on a scale of one inch to five feet and asking him to mark the place where his truck was when he saw some dark object come up out of the ditch, directed him to locate the place where he first saw the dark object come up out of the ditch. He made the mark about one hundred feet west of the intersection. The examination continued as follows:

'Q. In other words, when you first saw this child, he was about a hundred feet west of the intersection and he was not on the shoulder, is that correct? A. That's right.

'Q. And did you recognize this object as a child? A. No, I did not.

'Q. What did you recognize it as? A. As nothing; as having a--like a--something moving.

'Q. Something moving? A. Yes. * * *

'Q. You didn't recognize it, the object you saw, as a child? A. No.

'Q. Just as something moving. Were you looking straight at this object? A. No, I wasn't.

'Q. How were you looking at it, I mean? A. Well, just as I drove by, I see at a glance there something moving there, and I just went on.

'Q. Did you see this object out of the corner of your right eye? A. Yes.

'Q. Did you ever recognize this object as a boy? A. No.

'Q. Or a child? A. No.

'Q. What did the object appear to do as you saw it? A. Well, it seemed like it was coming out of the ditch and something was moving there, and that's all I seen. There was weeds there and a little ditch there about a foot and a half to two feet deep.' (Italics ours.)

We have made the foregoing quotations of evidence, and will make further quotations, because, in order to give due consideration to the questions raised by the appellant's assignments of error, it is necessary, if possible, to determine where the boy was when he was injured.

Warsing at no time testified that the 'dark object,' which he saw come out of the weeds, was a child. Counsel, in their questions as to that matter, frequently assumed that it was the respondent boy.

There is ample evidence in the record from which the jury could have found that the dark object which Warsing, the driver of the grocery truck, testified he saw come out of the weeds in the ditch alongside the shoulder, was not the respondent boy. Warsing as we have shown by quotations from his evidence, marked, on exhibit No. 1, a place where his truck was when he saw the object, by placing thereon a rectangular mark. It is vigorously contended by appelant's counsel that the object was the boy; and that, due to the weeds in the ditch,...