Sinclair v. Record Press, Inc.

• Decision Date: 27 March 1958
• Docket Number: No. 34452,34452
• Citation: 323 P.2d 660,52 Wn.2d 111
• Court: Washington Supreme Court
• Parties: O. W. SINCLAIR, by his Guardian ad litem, Dorothea Sinclair, and Dorothea Sinclair, his wife, Appellants, v. RECORD PRESS, Inc., and J. C. Kaynor and Fern Kaynor, husband and wife, Respondents.

Page 111

52 Wn.2d 111

323 P.2d 660

O. W. SINCLAIR, by his Guardian ad litem, Dorothea Sinclair and Dorothea Sinclair, his wife, Appellants, v.RECORD PRESS, Inc., and J. C. Kaynor and Fern Kaynorhusband and wife, Respondents.

No. 34452.

Supreme Court of Washington, Department 1.

March 27, 1958.

Rehearing Denied May 16, 1958.

Pemberton & Orloff, Bellingham, for appellants.

Kern, Dano & Cone, Ellensburg, for respondents.

HUNTER, Justice.

This is an action to recover damages for personal injuries suffered by O. W. Sinclair, an eighty-year-old pedestrian who was struck by an automobile driven by defendantJ. C. Kaynor, while crossing a street, not at a crosswalk, in a residential district.

As a result of the accident, Mr. Sinclair was rendered incompetent, and, therefore, could not participate in the prosecution of this action.The National Bank of Commerce, Yakima Branch, was appointed general guardian of his estate and Dorothea Sinclair, his wife, was appointed guardian ad litem for the purpose of commencing this litigation.Although Dorothea Sinclair, individually was joined as a partyplaintiff, O. W. Sinclair will be referred to herein as though he were the sole plaintiff(appellant).

Record Press, a corporation, the owner of the automobile and Fern Kaynor, wife of the driver, were joined as partiesdefendant but for the purpose of this appeal, J. C. Kaynor will be referred to as though the were the sole defendant(respondent).

At the close of plaintiff's case, the trial court sustained defendant's challenge to the sufficiency of the evidence and dismissed the action.After plaintiff's motion for a new trial was denied he appealed to this court.

Appellant urges that the trial court erred (1) in holding that appellant was guilty of contributory negligence, as a matter of law, and that such negligence was a proximate cause of his injuries; (2) in holding, as a matter of law, that the respondent was not negligent; (3) in granting respondent's motion for nonsuit and in entering judgment in accordance therewith; (4) in denying appellant's motion for a new trial; and (5) in excluding evidence of the location of appellant at the time of impact.

At the outset, we will consider whether the trial court erred when it granted the defendant's motion for nonsuit after the plaintiff had completed presenting his evidence.

A motion for nonsuit admits the truth of the evidence of the party against whom the motion is made and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the moving party and in the light most favorable to the opposing party.Phillips v. Department of Labor and Industries, 1956, 49 Wash.2d 195, 298 P.2d 1117, and cases cited therein;Traverso v. Pupo, Wash.1957, 316 P.2d 462.Further, in ruling on such a motion, no element of discretion is involved and the trial court can only grant the same when it can be held, as a matter of law, that there is no evidence or reasonable inference therefrom to sustain a verdict.Kemalyan v. Henderson, 1954, 45 Wash.2d 693, 277 P.2d 372.

With these rules in mind we will review the appellant's evidence which reveals the following facts: The accident occurred on October 11, 1954 between 10:00 and 11:00 o'clock in the morning.The weather was clear and crisp, and the pavement was dry.The place of the accident was on Third Street in the city of Ellensburg at a point roughly in the middle of the block and some distance from any pedestrian cross-walk.In that area, Third Street slopes downhill from east to west at approximately a six per cent grade and is thirty feet wide from curb to curb with no visible center line.Parking is permitted on the north side of the street but prohibited on the south side.The speed limit is twenty-five miles per hour.

On the day in question Mr. Joseph Fitterer gave the appellant a ride home in his pickup.He parked on the north side of the street about four feet behind the appellant's Cadillac automobile.After a short conversation the appellant got out of the pickup, stepped to the sidewalk, and walked down the sidewalk past his automobile.Mr. Fitterer prepared to pull away from the curb, but after seeing respondent's car coming from the east he decided to wait until that car passed.He estimated the speed of respondent's car from twenty to twenty-five miles per hour.

Mr. Fitterer, who was the only eyewitness to the accident, testified that he observed the respondent's car in his rear view mirror about one and one-half car lengths behind his pickup, at which time he saw the appellant in the process of passing the left-front fender of his Cadillac, or two or three feet out in the street.The testimony of Mr. Fitterer is clear, however, that when the respondent's car was twenty feet from the appellantthe appellant was three feet from the left-front fender of the Cadillac.At this time Fitterer sounded his horn and the appellant looked up and started running across the path of respondent's oncoming car.The respondent swerved to the left and struck the appellant near the center of the street with the right-front fender of his car.Mr. Fitterer further testified that the left-front fender or portion of respondent's car crossed the center line in the street.There is no dispute that the appellant suffered very serious injuries as the result of this accident.

There is no room for reasonable minds to disagree.The appellant, at the time of his injury, was attempting to cross a street in the middle of a block and was not within a cross-walk.He violated the statutory rule which required that he, was a pedestrian, yield the right of way to respondent.This rule is stated in RCW 46.60.250, which provides inter alia:

'Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.'(Italics ours.)

This was negligence per se and a proximate cause of the appellant's injury as a matter of law.SeeRoloff v. Bailey, 1955, 46 Wash.2d 358, 281 P.2d 462;Shiels v. Purfeerst, 1951, 39 Wash.2d 252, 235 P.2d 161;Shelton v. Bennett, 1949, 32 Wash.2d 529, 202 P.2d 461.Thus, any question of respondent's negligence, if any, is merely academic, in that the legal effect of the contributory negligence rule precludes recovery by the appellant in any event.Shiels v. Purfeerst, supra.

Appellant contends that he had succeeded in getting to, or across the center line, thereby yielding the right of way to the respondent, and that it was at least a question for the jury as to his position on the roadway when he was struck by the respondent's car.He relies on Mosso v. E. H. Stanton Co., 1913, 75 Wash. 220, 134 P. 941, L.R.A.1916A, 943;Rhimer v. Davis, 1923, 126 Wash. 470, 218 P. 193;Cannon v. City Electric & Fixture Co., 1930, 158 Wash. 66, 290 P. 828;Cox v. Kirch, 1942, 12 Wash.2d 678, 123 P.2d 328;Wood v. Copeland Lumber Co., 1949, 32 Wash.2d 490, 202 P.2d 453.

These cases are not authority for appellant's position under the facts of this case.In none of these cases did we announce a rule that a pedestrian who races across the immediate path of an oncoming vehicle traveling within the lawful rate of speed, and who succeeds in reaching or crossing the center of the street prior to being struck by the vehicle has yielded the right of way within the contemplation of the above statute.

Here, the respondent's car was only twenty feet from the appellant when he became aware of the appellant's intention...