Rieger v. Kirkland

• Decision Date: 31 January 1941
• Docket Number: 28068.
• Citation: 111 P.2d 241,7 Wn.2d 326
• Court: Washington Supreme Court
• Parties: RIEGER v. KIRKLAND et ux.

111 P.2d 241

7 Wn.2d 326

RIEGER v. KIRKLAND et ux.

No. 28068.

Supreme Court of Washington

January 31, 1941

Department 1.

Action by Edward Rieger, a minor, by John Rieger, his guardian ad litem, against A. J. Kirkland and Eva Kirkland, husband and wife, to recover damages for personal injuries and for property destruction. From a judgment for plaintiff defendants appeal.

Affirmed.

Appeal from Superior Court, Spokane County; R. M Webster, judge.

H. Earl Davis, of Spokane, for appellants.

Robertson & Smith, of Spokane, for respondent.

STEINERT Justice.

Plaintiff a minor, brought suit through his guardian ad litem to recover damages for personal injuries and for property destruction resulting from a collision in which plaintiff, while riding his bicycle, was struck by an automobile owned by defendants and being driven at the time by defendant wife. Tried to a jury, the action resulted in a verdict in plaintiff's favor. Judgment was entered thereon, and defendants appealed.

The accident occurred at about 4 o'clock in the afternoon of August 14, 1939, at a point, variously designated, within the right of way of a public highway known as Valleyway, just outside of the corporate limits of the town of Dishman, Washington. Valleyway, which runs in an easterly and westerly direction, had a graveled roadway about twenty-one feet in width. There were no sidewalks or curbs along the roadway, and some of the owners of the abutting properties had for some time past extended and maintained their front lawns out, or near, to the traveled portion of the road. The neighborhood in that vicinity was a well-settled residential community. Dwelling houses were located at approximately half-block intervals, and a grade school was near by. Many of the children living in the vicinity rode bicycles, and used the Valleyway road for that purpose.

The home of one Roy O. Dyer was situated on the north side of Valleyway. A private driveway, connecting with Valleyway, was located on the eastern side of the Dyer property, and east of the driveway was a row of shrubs extending to the road. Near the outer end of the row of shrubbery, and within a few feet of the edge of the road, were a telephone pole and a mail box which was attached to a post. Just east of the row of shrubs was another private driveway, which led from the highway to the residence of one Mrs. White. The lawn fronting the Dyer property extended to the edge of the traveled portion of Valleyway.

During the afternoon of August 14, 1939, respondent, then eleven years of age, had gone to the home of the Dyers for amusement; while there, he was engaged a part of the time in helping to irrigate the Dyer lawn. At about 3:30 or 4 o'clock, he started for his home, which was located a block or two east of the Dyer property and on the opposite side of Valleyway.

Respondent testified that he mounted his bicycle, which had been leaning against the front of the Dyer residence, rode across the lawn to the driveway, and then coasted down the driveway toward the highway; and that he saw appellants' car, which was traveling in a westerly direction, just after it passed the row of shrubbery bordering the driveway. In response to numerous questions, both on direct examination and on cross-examination, he repeatedly stated that he was struck by the automobile Before he reached the highway. At one stage of his cross-examination, however, he testified that he was 'on the edge of the road,' but not 'into' it, at the time. Upon cross-examination, he also testified that immediately prior to the impact he turned his bicycle to the west in an attempt to get out of the way of the automobile. Mrs. Kirkland, the driver of the automobile, testified that she was traveling at a speed of fifteen or twenty miles per hour; that she did not, to her knowledge, veer to her right at the point of impact; that she was watching the road straight ahead; and that she did not see the boy until just the instant Before the collision. On cross-examination, she testified that as she approached the White residence, which was just east of the Dyer property, she 'may have glanced' toward the lawn swing at the side of the house to see whether or not her good friend, Mrs. White, was there; that she was driving straight ahead; that she had to watch the road; and that 'the sun was in my eyes and I wasn't looking much.'

The only disinterested witness who saw the collision was a lady who was sitting on the front steps of her home about three hundred feet west of the scene of the accident, and was looking directly east. She first observed appellants' automobile about one hundred feet east of the Dyer residence, at which time the automobile was 'pretty well towards the middle of the road.' The automobile, she stated, was not weaving or turning at the time, but as it approached the front of the Dyer property it swerved toward the lawn, and got off the shoulder of the road. She did not observe the boy until after he had been struck and thrown into the air by the impact.

There was considerable evidence relative to the tracks left by the bicycle on the lawn. That evidence was practically uniform. The tracks, it appears, were very distinct. The witness who saw the collision from her front steps testified that the tracks started about three feet from the Dyer driveway, went over to the edge of the driveway, and then headed toward the highway. She could not remember whether or not the tracks continued on into the highway. The testimony of a witness who was the first person to reach the boy after the accident was substantially the same as that of the preceding witness. The latter witness, however, testified to the further fact that the bicycle tracks turned west at the edge of, but while still on, the lawn. Although that witness testified, on direct examination, that he was unable to say whether or not the tracks ever reached the highway, he testified on cross-examination that the tracks did not get quite to the gravel. A third witness testified that the tracks on the lawn indicated very plainly where the boy on the bicycle had made a 'whirl' to the west, and that the tracks did not lead into the road, but stopped at the edge of the lawn. Appellant husband, who came to the scene of the accident a few minutes after its occurrence, designated upon a map the course of the bicycle tracks, and according to his designation the tracks were entirely on the lawn. In addition, he testified affirmatively that such was the fact. Appellant wife also saw the tracks to the edge of the lawn only. The last witness to testify upon that subject was Mr. Dyer, and his testimony was in accord with that of the other witnesses.

Concerning the tracks made by appellants' automobile, Mr. Dyer testified that they came along the road from the east, about a foot from the bank of the abutting property, as shown on a photograph, and 'right about where you would park an automobile'; that they went past the driveway of the White property, and continued west beyond the Dyer driveway and 'until where the impact happened,' at which point the tracks swerved to the opposite side of the road. There was no other testimony on that subject.

All the evidence, with the exception of the testimony of Mrs. Kirkland, was practically uniform to the effect that the collision occurred a few feet west of the Dyer driveway, near the point where that driveway turned into the road. Mrs. Kirkland was alone in her testimony that the collision occurred three or four feet east of the driveway. Broken glass from the headlight of the automobile was found to the west of the driveway, and a few feet out into the road. The automobile, it will be recalled, had swerved to the opposite side of the highway after the impact, and stopped fifty feet away from the point of collision. According to Mr. Kirkland's testimony, examination of the automobile after the accident revealed that the right headlight had been bent back and to the left, and that a slight dent had been made in the top of the right fender, near the headlight.

Respondent was thrown high into the air by the impact, and upon falling to the ground lay on the edge of the Dyer lawn, about eight feet from the driveway, with his head on the lawn, facing in an easterly direction, and with the rest of his body on the road. The bicycle was demolished, the greater part of it being thrown about twenty-five feet west of the place where the boy lay.

Respondent sustained a fracture of the tibia, the large bone, of the left leg, lacerations on the arms, abdomen, and right leg, and bruises practically all over his body. He was taken to a hospital, where his leg was set and placed in a cast. Swelling of the leg necessitated opening and enlarging of the cast two days later. He remained in the hospital for three weeks, after which he was confined to his home for six weeks. About a month after his removal to his home, he was able to use crutches. The cast was removed, and the crutches discarded, about Christmas time, in 1939. The injury, it will be recalled, was sustained on August 14 of that year. Thereafter the boy was given massage treatments of the leg and foot. At the time of the trial, which began January 18, 1940, he was using a cane in walking; his walk, however, was attended by a limp; and the heel of the injured foot was still in such condition that it would swell up after any considerable use of the foot. A physician testified that the circulation in the injured leg would be impaired for several months longer.

We have set forth the testimony in detail for the reason that appellants, at the outset, challenge the sufficiency of the evidence to support the jury's finding of negligence on the part of Mrs. Kirkland, the driver of appellants' car,...