Shelton v. Bennett

• Decision Date: 08 February 1949
• Docket Number: 30511.
• Citation: 32 Wn.2d 529,202 P.2d 461
• Court: Washington Supreme Court
• Parties: SHELTON v. BENNETT et al.

202 P.2d 461

32 Wn.2d 529

SHELTON v. BENNETT et al.

No. 30511.

Supreme Court of Washington

February 8, 1949

Department 2

Rehearing Denied March 18, 1949.

Action by LeRoy Shelton against Russell E. Bennett and Jane Doe Bennett for personal injuries sustained in a pedestrian-automobile collision.From the judgment, plaintiff appeals.

Judgment affrimed.

Appeal from Superior Court, King County; Donald A. McDonald, judge.

Theodore S. Turner, of Seattle, for appellant.

Kumm &amp Hatch and W. R. McKelvy, all of Seattle, for respondents.

SIMPSON Justice.

Plaintiff instituted this action to recover damages for personal injuries occasioned in an automobile accident.The case tried to a jury, resulted in a verdict in favor of plaintiff.The trial court granted defendants' motion for judgment notwithstanding the verdict, and in the alternative, for a new trial.

Several errors are urged.However, we will consider only that one which relates to the granting of the motion to set aside the verdict of the jury.

In approaching the question, we have in mind the established rule that appellant it not only entitled to have all evidence weighed in his favor, but also every reasonable inference deducible from the evidence.McFarland v. Commercial Boiler Works,10 Wash.2d 81116 P.2d 288.

We summarize the facts produced at the trial as follows: The accident occurred between 6:30 and 7:00 p. m., January 8, 1946, at a point on East Marginal Way, just south of the corporate limits of the city of Seattle.It was dark and the lights had been turned on.East Marginal Way, extending in a northerly and southerly direction, is a four-lane paved highway, fifty feet in width, and is heavily traveled.Appellant, while walking across the highway, was struck by respondents' north-bound automobile.The scene of the colli-was in front of the manufacturing plant of the Boeing Aircraft Company.The Boeing plant, with a railroad track in front of it, is west of the highway, and the airport landing field is east of the roadway.South of the scene of the accident the Boeing Company maintained a crossing for the purpose of transporting airplanes from the plant to the field.Guardhouses were located on each side of the highway near the crossing.North of the airplane crossing, and south of the place where the accident occurred, there was a marked pedestrian crossing.In the center of the highway, and ten feet north of the pedestrian crosswalk, there was an overhead blinker traffic signal which showed amber to highway traffic and red to pedestrian crossing traffic.

Appellant, employed by a railroad company as a switchman, was off duty at the time he was injured.Just prior to the accident he had been riding on the switch engine which was traveling north on the west side of the highway.The engine upon which he was riding stopped in front of Boeings.Appellant got off, walked to the guardhouse situated on the west of the highway and then to a dispatcher's shed, for the purpose of telephoning his wife.He was unable to secure the use of a telephone and started for the guardhouse on the east side of the highway.In crossing the highway appellant did not go to the marked pedestrian crossing, but pursued a course in a southeasterly direction across the portion of the highway reserved for vehicles.Witnesses testified that he hurried--that is, 'He wasn't running.He was not really running.Kind of a little dog trot.''He was trotting.'

As appellant crossed the highway he ran into, or was struck by, the left front fender, light, and grille of respondents' car.The point of impact was about fifteen feet north of the pedestrian crosswalk, and sixteen or seventeen feet from the easterly margin of the highway.The position would be about the center of the northbound lane.Respondents' speed just prior to the accident was estimated at fifty miles per hour.The maximum speed limit at that place and time was thirty-five miles per hour.Appellant's witness, Vannoy, a locomotive fireman, was assisting in operating the engine upon which appellant rode just Before the accident.Mr. Vannoy testified that he saw appellant leave to cross the highway on an angle.That he was trotting.

'Q.That is the way you'd describe it, as trotting?As he went to the pavement was he still trotting?A.Yes, he was on a slow trot all the way.

'Q.So there will be no question what you mean, he ran across there on the planks and when he came to the west edge of the pavement he kept on running?He didn't stop Before going on the pavement?A.No.He only hesitated just enough to look.I noticed he looked down the highway.

'Q.Younoticed that?A.Yes.I was watching.

'Q.There is nothing there you didn't notice?A.That is right.At the time there was nothing I didn't notice.Some of it is a little vague, but I didn't miss nothing.

'Q.In any event, he didn't stop?He was still trotting?A.Yes.

'Q.He kept on trotting from that time until the collision?A.Yes.

'Q.How far away were cars that were coming south as this man went onto the pavement?A.Coming south?

'Q.Coming from town were there cars coming here?A.There was a truck came along there by the time we got stopped and got off the engine.

'Q.Was it up here some place on the pavement?A.It was quite a ways from there when he went out on the pavement.

'Q.Any other vehicles coming from Seattle?A.No.

'Q.Justthat truck?A.Yes.'Immediately after the accident, appellant was taken to Harborview Hospital where a blood test was taken.The test showed that he had '241 milligrams per cent' of alcohol in his blood.Dr. Leo Sulkosky testified that

'150 milligrams per cent is usually considered strong intoxication.You can't drive a car.You can't do any of the normal things a man should do that has just had some alcohol.

'Q.What would you say 241 would mean?A. 200, expressed by most men, is definite intoxication and 300 is coma. 241 would be between the two of them.

'Q.Between intoxication and coma?A.Yes.'

In passing upon the motion for n. o. v., the trial court stated:

'Plaintiff had the choice of crossing at the crosswalk, where he had the right of way, or taking a chance by crossing diagonally, while running on a long diagonal course toward the crosswalk.He was required to know that he was charged with yielding the right of way to the vehicles on the roadway.Yet he took no precautions for his own protection and collided practically head on with defendants' vehicle.The motion n. o. v. will have to be granted.'

Our statute, Rem.Rev.Stat. § 6360-99, Laws of 1937, ch. 189, § 99, provides:

'Pedestrians crossing a roadway other than at intersection crosswalks shall yield the right of way to all vehicles upon the roadway.'

The question for decision is, was appellant as a matter of law guilty of contributory negligence which barred his recovery?This court has held in numerous cases that a person who sustains injuries as a result of actions similar to those related here, is guilty of contributory negligence which precludes any recovery.Rasmussen v. McCarthy,188 Wash. 555, 62 P.2d 1353;Hamblet v. Soderburg,189 Wash. 449, 65 P.2d 1267;Turnquist v. Rosaia Bros., Inc.,196 Wash. 434, 83 P.2d 353;Poland v. Seattle,200 Wash. 208, 93 P.2d 379;and, Hynek v. Seattle,7 Wash.2d 386, 111 P.2d 247.

We call especial attention to the holding in the cases of Hagstrom v. Limbeck,15 Wash.2d 399, 130 P.2d 895, andNylund v. Johnston,19 Wash.2d 163, 141 P.2d 863.

In the Hagstrom case, it appears that the plaintiff pedestrian was hit by defendants' automobile when plaintiff was crossing Greenwood avenue at North 107th street outside the northerly limits of the city of Seattle, about nine p. m.,...