Orme v. Watkins

• Decision Date: 01 March 1954
• Docket Number: No. 32563,32563
• Citation: 267 P.2d 681,44 Wn.2d 325
• Court: Washington Supreme Court
• Parties: ORME, v. WATKINS et al.

Page 325

44 Wn.2d 325

267 P.2d 681

ORME, v. WATKINS et al.

No. 32563.

Supreme Court of Washington, Department 2.

March 1, 1954.

Rehearing Denied April 30, 1954.

N. A. Pearson, Seattle, for appellants.

Bassett, Geisness & Vance, Seattle, for respondent.

SCHWELLENBACH, Justice.

This is an appeal from a judgment for injuries sustained by a six-year-old school boy when he was hit by an automobile driven by Mrs. Watkins.

The accident occurred about eleven a. m., April 18, 1952, at the intersection of Twenty-Third Avenue South and Atlantic Street in Seattle. The day was bright and clear and the streets were dry. Twenty-third Avenue South runs northerly and southerly and Atlantic Street runs easterly and westerly. In the center of the intersection there was an overhead traffic control signal containing three lights. At the top was a red 'Stop' light. Underneath that was an amber 'Caution' light, and underneath that was a green 'Go' light. These lights are so controlled that the signal switches directly from red ('Stop') to green ('Go'). It then switches from green to amber ('Caution') before it switches to red.

The accident occurred at the crosswalk on the southwest corner of the intersection The boy had come out of the M & M Food Store and was waiting at the curb to cross over to the Colman School. Apparently the school bell had rung designating the close of the recess period. Mrs. Watkins drove south through the intersection and was at the south crosswalk when the boy stepped off of the curb and the collision occurred. After the collision the boy was lying in the street about two or three feet from the curb and about twelve feet south of the south line of the crosswalk. There were skid marks for a distance of about forty-two feet from the point of impact.

As usual, there was a discrepancy in the testimony as to how the accident occurred. Vernon L. Hunkins, a truck driver, testified that he was traveling north on Twenty-third Avenue South; that, when he was about a block away, he saw Raymond Orme and another boy standing at the curb. He testified, 'As far as those two boys were concerned, there wasn't a car within a thousand miles. Their eyes were glued to that light in the intersection.' He testified that he saw Mrs. Watkins driving in the opposite direction; that the light had turned amber at least fifty feet before she reached the intersection; that she slowed down, and then proceeded on through; that the light turned green in the boy's favor before he left the curb. Mr. Hunkins did not see the actual impact because Mrs. Watkins' car was between him and the boy when the collision occurred.

Mrs. Watkins testified that as she approached the intersection the traffic light was red; that she stopped for about a quarter of a minute; that the light turned green; that she saw the boy come out of the store and stop at the crossing; that when she got close to him she heard a 'bump'; that she slammed on her brakes and went back to where the boy was lying; that she was traveling about ten or fifteen miles an hour. James F. Shannon, the principal of the Colman School, talked to her before the officers arrived. He testified that she told him, 'I wasn't doing over thirty miles an hour'; that later he heard her tell the officers that she was going twenty miles an hour. This was denied by Mrs. Watkins. Under cross-examination she testified that she had traveled over this intersection every day for four months; that she knew that there was a school there; that she first observed the boy standing on the sidewalk when she was a block away; that she did not sound her horn as she went through the intersection. Her testimony was corroborated by Louise Bessant, who was riding with her.

The complaint alleged that defendant wife drove at a negligent and unlawful speed of more than twenty-five miles an hour and negligently, without sounding her horn, and without yielding the right of way to the boy, drove into him, inflicting injuries to him, to his damage, in the sum of $7,500. Defendants answered, denying negligence and denying damage in any amount. Evidently, the jury believed the testimony of Mr. Hunkins, a disinterested witness, as to what actually occurred, and did not believe appellant wife and the lady who was riding with her. It found for the plaintiff and awarded damages in the sum of $5,000. This appeal follows.

Appellants urge that the trial court erred in denying defendants' challenge to the sufficiency of the evidence; in giving certain instructions; in refusing to give a requested instruction; in denying motion for judgment n. o. v. or in the alternative for a new trial; in not reducing the amount of the verdict; and in entering judgment for the plaintiff.

The legislature had a motive when it provided for an amber light as a part of a traffic control signal. The amber light is not an invitation to try to beat the red light. It is a warning that shortly the light will turn red, and anyone who proceeds into an intersection under such circumstances does so with the knowledge that the light might turn red (and green for persons about to traverse his path) before he can complete his trip through the intersection. We are satisfied, from the facts heretofore related, that the plaintiff presented a prima facie case, and that the trial court did not err in denying the challenge to the sufficiency of the evidence. The jury having found for the plaintiff on disputed testimony, it was not error to deny the motion for judgment n. o. v The trial court gave Instruction No. 6:

'I instruct you that a statute of this State provides that every motor vehicle shall be equipped with a suitable horn, which shall be sounded at any time when such vehicle is approaching a condition of danger or where, in the exercise of due care, warning should be made or given. If the driver of an automobile fails to exercise reasonable care in observing the requirements of this statute, such failure is negligence as a matter of law for which he is liable in damages to any person injured as a natural and proximate result thereof.'

Had the testimony been undisputed that Mrs. Watkins stopped with the red light and proceeded across with the green light, as she claimed, the above instruction would not have been proper. However, there was testimony that she knew the school was there; that she saw the boy on the sidewalk when she was a block away; that the light turned amber when she was fifty feet from the intersection; that she hesitated and then proceeded into the intersection with the amber light on. We feel that under testimony such at this, the instruction was proper.

The court gave Instructions Nos. 7 and 8:

'I instruct you that a pedestrian has the right to enter a street intersection when the green light turns in his favor and to proceed across it and to presume that traffic from his left and right will be carried on in obedience to the law and not interfere with his progress.'

'If you find from a preponderance of the evidence that the plaintiff Raymond Orme left the sidewalk when or after the traffic control light facing him turned green, you are instructed that he had the right of way over the vehicle operated by defendant Lillie Mae Watkins, and under such circumstances her failure to yield the right of way is negligence.'

Contributory negligence was not pleaded because of the boy's age. It was not before the jury. The instructions complained of were therefore proper. See Lubliner v. Ruge, 21 Wash.2d 881, 153 P.2d 694.

Error is assigned in the refusal of the trial court to give the following requested instruction:

'I charge you that if you believe after full consideration of all the facts and circumstances surrounding this case that what happened was a mere accident which was under all circumstances unavoidable, then there can be no recovery in the action and your verdict should be for the defendants.'

In the recent case of Cantrill v. American Mail Line, Ltd., 42 Wash.2d 590, 257 P.2d 179, 185, we said this, with reference to the use of the term 'mere accident,' in instructions:

'We think the use of the words 'mere fact' in No. 2 (not excepted to) and in No. 3 and of the words 'mere accident' in No. 11 tends to belittle appellant's position in the case in the eyes of the jury. We, therefore, deem it proper to suggest that the word 'mere' be omitted from these or similar instructions upon a retrial of this case in order to avoid any question as to the impartiality of the instructions as a whole.'

Of course, the Cantrill decision was filed May 8, 1953, while the case at bar was tried March 24, 1953. The Cantrill case indicated that, if facts are presented which bear on the issue of unavoidable accident, an instruction on that issue is proper. In the instant case the court gave Instruction No. 10:

'The court instructs the jury that if you find from the evidence in this case that the defendant driver drove through the intersection with the green light and on her own side of the highway, and in the exercise of due care, and the plaintiff boy stepped off the sidewalk and ran into the side of defendant's automobile, then I charge you that he cannot recover and your verdict must be for the defendants.'

That instruction clearly presented the appellant's theory of the case to the jury. To have given, in addition, an instruction on unavoidable accident, would have been surplusage and might have tended to confuse the jury. After all, the question confronting the jury was one of negligence. If Mrs. Watkins was guilty of negligence which was the proximate cause of the boy's injuries, she was liable in damages. If she was not guilty of such negligence, she was not liable in damages.

Error is assigned in giving Instruction No. 13:

'If you find a verdict for the plaintiff, you will assess his damages in such an amount as will fully and fairly compensate him for such injury to his left arm and hip, right leg and knee, forehead, face...