Shasky v. Burden, 41295

• Decision Date: 11 June 1970
• Docket Number: No. 41295,41295
• Citation: 78 Wn.2d 193,470 P.2d 544
• Parties: Bernard SHASKY and Catherine Shasky, his wife, and the marital community composed thereof, Appellants, v. John Doe BURDEN and Erma Burden, his wife, and the marital community composed thereof, Respondents.
• Court: Washington Supreme Court

Page 193

78 Wn.2d 193

470 P.2d 544

Bernard SHASKY and Catherine Shasky, his wife, and the marital community composed thereof, Appellants, v. John Doe BURDEN and Erma Burden, his wife, and the marital community composed thereof, Respondents.

No. 41295.

Supreme Court of Washington, Department 2.

June 11, 1970.

McCrea, Kafer, Gissberg & Wilson, Everett, Michael R. Donovan, Bellevue, for appellants.

Anderson, Hunter, Carlson & Dewell, William W. Baker, Everett, for respondents.

HALE, Associate Justice.

While crossing a main street in a marked, signal-controlled crosswalk, plaintiff Catherine Shasky was struck and injured by defendants' automobile. The jury returned a general verdict in favor of the defendant driver and plaintiffs appeal the judgment entered upon it. Plaintiffs assign error to instructions given and refused, to submitting the issue of contributory negligence to the jury, and to the court's refusal to direct a verdict in their favor.

Broadway, at its intersection with 19th in Everett, was a heavily traveled main street running north and south through a business or commercial district with a 35 miles per hour speed limit. It had two traffic lanes for northbound traffic, two for southbound traffic and a parking lane on either side. Signal lights controlled vehicular traffic at the 19th Street intersection and on Broadway. Marked pedestrian crosswalks conrolled by signal lights flashing the 'Walk' and 'Wait' legends crossed both Broadway and 19th Streets.

It was very dark and raining when the accident happened at about 6 p.m., December 2, 1967. Mrs. Shasky, dressed in dark clothing, was walking east across Broadway in the northerly crosswalk at 19th. She had crossed the two southbound and the first northbound lanes when she was struck by the right front bumper of defendants' car as it traversed the crosswalk while traveling north in the easterly or outside lane.

Plaintiffs assign error to the court's submitting the issue of contributory negligence to the jury and to the refusal of a directed verdict. A decision on either of these related assignments depends largely on the evidence, for if there is substantial competent evidence to support an issue, it must be submitted to the jury. Contributory negligence cannot be withdrawn from the jury or a verdict directed for the plaintiff where there is substantial evidence to support either the issue of contributory negligence or want of negligence. Dahl v. Klampher, 71 Wash.2d 203, 427 P.2d 709 (1967); Poston v. Mathers, 77 Wash.Dec.2d 329, 462 P.2d 222 (1969). Thus, before the contributory negligence issue can be properly taken from the jury, the record must be such that reasonable minds would agree that Mrs. Shasky had exercised the degree of care which a reasonably prudent person would have exercised for her own safety under the circumstances, and that her actions were, as a matter of law, free of negligence. The trial court may withdraw an issue of fact from the jury only where it can properly say as a matter of law that there has been no substantial evidence to support it. Carrieri v. Bush,69 Wash.2d 536, 419 P.2d 132 (1966).

The record, we think, contains substantial evidence from which the jury could infer contributory negligence and could find defendants free of actionable negligence, too. The defendant driver testified that she was driving north on Broadway at 20 to 25 miles per hour in the outside northbound lane. When her car was about one-quarter block from the 19th Street intersection, she observed that the traffic control light facing her was green; she watched it as she approached and it remained green as her car entered the intersection. Lighting conditions at the crosswalk were poor, she said. There was no vehicle directly in front of her when her car was about to traverse the north crosswalk but vehicular traffic was moving south in the two southbound lanes on broadway. She saw no one in or entering the north crosswalk until the front of her vehicle was 4 or 5 feet from it, and then she suddenly caught a glimpse of Catherine Shasky passing in front of her car. She slammed on her brakes but her car struck plaintiff and stopped within the crosswalk. Describing her first glimpse of plaintiff, defendant driver testified, 'Yes, she was running--she was walking, I would say, moderately fast. * * * She wasn't looking, she had her head turned the other way, turned to the north.'

Linda Burden, daughter of the defendant, then 15 years old, was riding in the front seat of the car that evening. She said that, when their car was about one-half block from the 19th Street intersection, she looked at the traffic signal light facing them and saw that it was green. She first saw Mrs. Shasky in the crosswalk when plaintiff was 4 or 5 feet from their car and a little to the left of it, and yelled a warning at about the same instant that her mother slammed on the brakes. Thus, according to both the defendant driver and her daughter, the traffic light facing them and controlling their northbound car was green when they were between one-half block and one-quarter block away from it.

Another witness, 14-year-old John Martinis, a bystander, heard the accident and saw that the traffic signal light facing the defendant driver was green. Just before the impact, he was standing on an 8-foot ladder at the southeast corner of the intersection removing a sign from a billboard when he heard the sound of a minor collision--not the one involved in this case. He started across the street to see what had happened in that accident and, while crossing 19th, saw the Burden car run into Mrs. Shasky. He said he saw the right front end of defendants' car strike plaintiff while she was in the crosswalk. In the time it took him to run across 19th from the southeast to the northeast corner of the intersection to the place of impact, the light stayed green--the same green signal interval on which the Burden car had gone through the intersection. After he had reached the place of impact, he saw the light change from green to yellow to red. Vehicular traffic on Broadway was very heavy, he said, and that it was raining and the intersection dark.

In deciding whether to submit the issue of contributory negligence and in ruling on a motion for a directed verdict, the court had to consider all of the evidence. Catherine M. Shasky, plaintiff, testified that she was carrying a sandwich and a container of coffee to a friend of hers in a business establishment on the east side of Broadway a few doors north. of the 19th Street intersection. She waited, she said, at the northwest corner of the intersection at the crosswalk until the pedestrian control signal gave her the green 'Walk' signal. She...