Rasmussen v. McCarthy

• Decision Date: 14 December 1936
• Docket Number: 26250.
• Citation: 188 Wash. 555,62 P.2d 1353
• Parties: RASMUSSEN v. McCARTHY et ux.
• Court: Washington Supreme Court

62 P.2d 1353

188 Wash. 555

RASMUSSEN v. McCARTHY et ux.

No. 26250.

Supreme Court of Washington

December 14, 1936

Department 2.

Appeal from Superior Court, Skagit County; George A. Joiner, Judge.

Action by Harry Rasmussen against Leighton A. McCarthy and Jane Doe McCarthy, his wife.From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Padden & Moriarty and Earl F. Requa, all of Seattle, for appellant.

Roberts & Skeel and W. R. McKelvy, all of Seattle, for respondents.

MITCHELL Justice.

Harry Rasmussen, while walking across the Pacific Highway, was injured in a collision with an automobile driven by Leighton A. McCarthy, and brought this action to recover damages alleging that defendants' negligence was the cause of the collision.The answer was a general denial, and an affirmative defense that the damages, if any, were caused by the negligence of the plaintiff himself as the proximate cause of the collision.A trial Before a jury resulted in a judgment of nonsuit at the close of plaintiff's case.The plaintiff has appealed.

Appellant's own testimony was as favorable to him as all of the testimony that was introduced.It showed that he was guilty of negligence as the proximate cause of the injury and that it must be so held as a matter of law.

The accident occurred on Saturday evening after dark on the Pacific Highway at a place not provided or intended as a crossing.Appellant was familiar with the place.The highway consists of two pavements, each 20 feet wide, with a 4-foot strip of dirt between them.The center of each pavement is marked by a yellow line.The highway runs in a northerly and southerly direction.The east pavement is used for northbound traffic, and the west pavement carries southbound traffic.The respondent, going south, was operating his automobile along the right-hand side of the pavement on the west.The appellant was crossing the highway from the east side and collided with the automobile as he reached the yellow strip on the west pavement.The impact broke the handle on the door on the left-hand side of the automobile.The highway was dry and level and straight for more than 1000 feet approaching from the north.Appellant had several glasses of beer shortly Before the collision occurred.

He testified that he crossed the easterly pavement, got to the west side of the strip of dirt between the pavements, looked north, and saw respondent's automobile coming from that direction, about 260 to 275 feet distant; that he could not tell how fast it was coming; that the car had its lights burning; and that he thought he could get across the highway.He then walked on across...