Rikstad v. Holmberg

• Decision Date: 19 June 1969
• Docket Number: No. 39428,39428
• Court: Washington Supreme Court
• Parties: Judy A. RIKSTAD, individually, and as Administratrix of the Estate of John Rikstad, deceased, Appellant, v. Ernest HOLMBERG and Norma Marie Holmberg, husband and wife, Respondents.

Page 265

76 Wn.2d 265

456 P.2d 355

Judy A. RIKSTAD, individually, and as Administratrix of the Estate of John Rikstad, deceased, Appellant, v. Ernest HOLMBERG and Norma Marie Holmberg, husband and wife Respondents.

No. 39428.

Supreme Court of Washington, Department 1.

June 19, 1969.

Edwin R. Johnson, Tacoma, for appellant.

Davies, Pearson, Anderson, Pearson & Gadbow, Wayne J. Davies, Seattle, for respondents.

WEAVER, Judge.

Plaintiff, for her benefit and for the benefit of four surviving children of her deceased husband, brings this action for damages for the alleged wrongful death of her husband. Plaintiff appeals from an order dismissing her action with prejudice entered after the trial court had sustained a challenge to the sufficiency of plaintiff's evidence.

At the outset, we are aware of the oft-quoted rule that a challenge to the sufficiency of the evidence at the end of plaintiff's case admits the truth of the evidence and all the inferences that can reasonably be drawn therefrom. It requires that the trial court, and this court upon appeal, interpret the evidence most strongly against defendant and most favorably for plaintiff. Smith v. B & I Sales Co., 74 Wash.Dec.2d 153, 443 P.2d 819 (1968); Holland v. Columbia Irrigation District, 75 Wash.Dec.2d 312, 450 P.2d 488 (1969).

From this, it is apparent that where there are justifiable inferences from the evidence upon which reasonable minds might reach different conclusions, the questions are for the jury to decide.

Plaintiff's husband died as a result of having been run over by a pickup truck driven by defendant. The accident occurred on July 4, 1965, between 10 and 11 p.m., at the campsite of three families.

The campsite, located in a field adjacent to a bridge over the Clearwater River, was not an established camping ground. Much of the field, shown to be of irregular terrain, was, for the most part, covered with tall grass, blackberry bushes, and alder saplings. The camp area was reached by driving across the field. Although a road had not been built, continual ingress and egress of cars and pickup trucks of campers had resulted in the establishment of a semblance of a roadway across the field. The ruts 'where the tracks were' had been used by defendant and others in approaching the campsite on July 3 and 4. The lane was devoid of high grass, bushes, and saplings and showed that automobiles had used it.

Decedent and defendant, in the company of others, visited their friends at the camp on July 3. There is evidence, which a jury would be entitled to believe, that both defendant and decedent drank considerable liquor on July 3 and that decedent had little sleep that night.

Defendant and decedent returned to the camp in the late afternoon or early evening of July 4. The drinking continued. While defendant helped one of the campers fix a shelter tarp for the night, decedent, with others, was standing close to the campfire. Decedent was waving a bottle and asked defendant to join him for a drink.

Between 10 and 11 p.m., defendant decided he and decedent should return to their cabin in Clearwater, Washington, about 8 or 10 miles away. When defendant did not see decedent, he yelled for him three or four times and blew the air horn on his pickup two or three times. A Mr. Olson, one of the campers, testified that '5 minutes or so' before the accident he told defendant that he had seen decedent 10 to 15 feet from the campfire toward the main highway--not the route used in crossing the field to the campsite.

Not finding decedent, defendant entered his truck. He did not attempt to turn the truck so that he could retrace the route by which he had approached the campsite, but pulled up alongside the campfire, a distance of 10 or 12 feet, stopped, and asked if anyone had seen decedent. Receiving a negative reply, defendant proceeded forward slowly in low gear, with the truck lights on high beam so that they did not light the ground immediately in front of the truck.

Defendant's route was not over the established roadway by which all cars had approached the camp. Instead, defendant undertook to drive across the open field close to the camp. The route he proposed to take showed no signs of previous traffic. The terrain was irregular; the grass was high; bushes and saplings were scattered in the vicinity.

Defendant testified that his objective was an old dirt road, paralleling the public highway, that would have taken him to the bridge over the river. He thought decedent was at the bridge. It developed at trial, however, that the old road had been blocked by a pile of dirt to prevent traffic over it. Having proceeded about 25 feet, he ran over decedent, who was lying in a depression where the grass was knee high.

An autopsy showed that decedent had an alcohol blood content of 0.24. The autopsy surgeon testified that, in his opinion, decedent 'was out cold. He had passed out.'

It must be kept in mind that we are considering only one question: Should a challenge have been sustained to the sufficiency of plaintiff's evidence, or should the case have been submitted to the jury?

Plaintiff's evidence must demonstrate that (1) there is a statutory or common-law rule that imposes a Duty upon defendant to refrain from the complained-of conduct and that is designed to protect the plaintiff against harm of the general type; (2) the defendant's conduct violated the duty; and (3) there was a sufficiently close, actual, causal connection between defendant's conduct and the actual damage suffered by plaintiff. O'Donoghue v. Riggs, 73 Wash.Dec.2d 819, 440 P.2d 823 (1968); McLeod v. Grant County School District, 42 Wash.2d 316, 255 P.2d 360 (1953); Annot., Foreseeability as an element of negligence and proximate cause, 100 A.L.R.2d 942, 997 (1966).

The trial court, in sustaining a challenge to the sufficiency of plaintiff's evidence, held, as a matter of law, that a reasonable man would not have foreseen that decedent was asleep in the grass; hence, defendant's conduct was not the proximate cause of the...