Rettig v. Coca-Cola Bottling Co.

• Decision Date: 13 March 1945
• Docket Number: 29490.
• Citation: 156 P.2d 914,22 Wn.2d 572
• Parties: RETTIG v. COCA-COLA BOTTLING CO. et al.
• Court: Washington Supreme Court

156 P.2d 914

22 Wn.2d 572

RETTIG v. COCA-COLA BOTTLING CO. et al.

No. 29490.

Supreme Court of Washington

March 13, 1945

Department 1.

Action by Adolph C. Rettig and another against the Coca-Cola Bottling Company and another to recover for the death of the plaintiffs' son who was struck by a truck belonging to the named defendant. Judgment for the defendants, and the named plaintiff appeals.

Judgment affirmed.

Appeal from Superior Court, Spokane County; Fred H. Witt, judge.

A. O Colburn and Orville W. Duell, both of Spokane, for appellant.

Edge Davenport, Keith & dePender and Boardman Noland, all of Spokane, for respondents.

GRADY Justice.

This action was brought by Adolph C. Rettig and Marjorie Rettig his wife, against the Coca-Cola Bottling Company and Wayne P. Hampton, to recover a judgment for damages. The substance of the complaint is that on December 18, 1943, Wayne P. Hampton was driving a truck belonging to the Coca-Cola Bottling Co. along a public highway in Spokane county, Washington, and that he did so in such a negligent manner that he collided with and ran over Garry Rettig, a son of plaintiffs, who was then of the age of four years, causing injury to him resulting in his death.

In their answer the defendants denied the charges of negligence on their part and alleged affirmatively that at the time the child was injured he was accompanied by his mother and was in her custody and control, and that she was guilty of contributory negligence which contributed to his injury.

Before the case was tried an order was entered dismissing Marjorie Rettig from the action. The case was tried Before the court and a jury and resulted in a verdict for the defendants. The jurors inserted in their verdict the words: 'unavoidable accident.' The court denied a motion of the plaintiff for a new trial and entered a judgment on the verdict. The plaintiff has taken an appeal from the judgment.

The material facts of the case are not in dispute, and so far as necessary for a determination of the questions raised by appellant they are as follows:

Greenacres was a public highway in Spokane county and ran in a northerly and southerly direction. Cataldo was a public highway which ran in an easterly and westerly direction ending at its intersection with Greenacres and on the east side thereof.

On December 18, 1943, at about 1 o'clock in the afternoon, a passenger bus was being driven along the westerly side of Greenacres in a southerly direction. Among the passengers were Marjorie Rettig, the wife of appellant, their daughter, age seven, and Garry Rettig, their son, of the age of four years and ten months. Following the bus was a truck belonging to Coca-Cola Bottling Co. driven by Wayne P. Hampton. The bus stopped at a driveway on the west side of Greenacres approximately opposite Cataldo in order to permit Mrs. Rettig and the children to alight. The destination of Mrs. Rettig and the children was the home of her parents who resided on Cataldo. When the bus stopped the truck was about twenty feet at its rear. The driver of the truck slowed it down to a speed of about five miles per hour and turned it to his left to pass the bus. As he turned the truck he sounded its horn and put it in third gear or the gear just below high gear. He then increased the speed of the truck to an estimated speed of ten miles per hour. When the bus stopped Garry Rettig alighted and was followed by his sister. After the boy stepped to the ground he started around the front end of the bus. Mrs. Retting was standing on the lower step of the bus. She called to the boy twice, warning him not to go in front of the bus. The boy did not heed the warning, but continued on and took a diagonal course across Greenacres. When he reached about the middle of the road he was struck by the truck. The driver of the truck did not see the boy as he emerged from the front of the bus, but he heard something which sounded like an impact and brought the truck to a stop a short distance beyond the place where the boy had been struck and on the easterly side of Greenacres. The witnesses varied in their testimony as to the speed of the truck at the point of impact, but it ranged from ten to fifteen miles per hour.

The errors assigned are that the court should have directed the jury to have returned a verdict for the plaintiff, but not having done so should have granted the motion for a new trial. The other errors are with reference to the failure of the court to give to the jury certain requested instructions.

Assignments of error 1, 2, 6 and 7 will be discussed together as they raise the question whether Rem.Rev.Stat. § 6360-99 [Pierce's Code § 295-49] applies to the facts of this case. The parts of the statute referred to are as follows: 'Pedestrians shall be subject to traffic control signals at intersections and the directions of officers discharging the duty of directing traffic at intersections. Where traffic control signals are not in place or in operation, the operator of a vehicle shall yield the right of way, slowing down or stopping, if need be to so yield, to any pedestrian crossing the roadway within a marked crosswalk or within any unmarked crosswalk of any intersection. Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at any intersection to permit a pedestrian to cross the roadway, the operator of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle. * * * Notwithstanding the provisions of this section, every operator of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise all proper precaution upon observing any children or any confused or incapacitated person upon the roadway.'

The appellant claims that the court should have held as a matter of law that the driver of the truck was negligent in that he did not obey the statute in the following particulars: (1) That the boy was a pedestrian crossing the roadway and the driver of the truck did not yield the right of way to him, and (2) that he overtook and passed a vehicle which had stopped at an intersection to permit a pedestrian (the boy in this case) to cross the roadway.

The appellant requested the court to instruct the jury that if the driver of the truck violated either or both of the foregoing provisions of the statute he would be guilty of negligence.

The statute gives the right of way to a pedestrian crossing a roadway at an intersection, and requires the operator of a vehicle to yield the right of way to him and if necessary to do so such operator must slow down or stop the vehicle. Before this duty arises the operator must be in a situation whereby he is either aware of the presence of a pedestrian within a crosswalk, or if he had been exercising reasonable care in looking out for and anticipating the presence of a pedestrian within such crosswalk he should have become aware of his presence there. In the case Before us a small boy stepped from a bus, ran around in front of in and pursued a diagonal course directly in front of the truck traveling in the same direction as the bus had traveled. The jury could have concluded from the evidence that the driver of the truck was not aware of the presence of the boy and could not have become so as the bus hid him from view, and the position of the driver in the cab of the truck prevented sight of the boy after he emerged from the front of the bus. The status of the boy as a pedestrian had not so come into being that it could have been said the driver of the truck was or should have been aware of his presence on the crosswalk so that the duty arose to yield the right of way to him.

The bus had not stopped at a crosswalk to permit a pedestrian to cross the roadway, but to permit passengers to alight. The evidence indicates the front of the bus was somewhat to the south of and beyond the crosswalk when it stopped. The statute contemplates a situation where a vehicle has stopped at a crosswalk and has yielded the right of way to a pedestrian so that he can pass in front of it and proceed across the roadway. When this occurs a vehicle approaching from the rear must not pass the stopped vehicle but must also yield the right of way to the pedestrian.

We are of the opinion that the statute did not apply to the situation which confronted the driver of the truck and that it cannot be held that he was guilty of statutory negligence.

The court appears to have adopted this view as it refused to give the proposed instructions applying the statute to the evidence, but instructed the jury that it was the duty of the driver of the truck to exercise such care as a reasonably careful and prudent driver would exercise under the circumstances to avoid a collision with or striking the...