Stephenson v. Parton

• Decision Date: 17 February 1916
• Docket Number: 12827.
• Parties: STEPHENSON v. PARTON et al.
• Court: Washington Supreme Court

155 P. 147

89 Wash. 653

STEPHENSON v. PARTON et al.

No. 12827.

Supreme Court of Washington

February 17, 1916

Department 1. Appeal from Superior Court, Yakima County; Thomas E Grady, Judge.

Action by Florence E. Stephenson, administratrix, against Bert Parton and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Englehart & Rigg, of North Yakima, for appellants.

George B. Holden, of North Yakima, for respondent.

MOUNT J.

On June 25, 1914, Oliver P. Stephenson was run over and killed by an automobile being driven by Miss Ruth Parton. This action was brought by the administratrix of his estate. She alleged negligence on the part of the defendants, and prayed for damages in the sum of $9,000 for the widow, $1,500 for a married daughter of the age of 22 years, $2,000 for a minor daughter 16 years of age, and $2,500 for a daughter 13 years old. The defendants, for answer to the complaint, denied the material allegations thereof, and set up the defense of contributory negligence on the part of the deceased. The case went to trial upon these issues. The defendants, at the close of the plaintiff's evidence, moved for a directed verdict. At the close of all the evidence the motion for a directed verdict was renewed. These motions were denied. The jury returned a verdict in favor of the plaintiff as follows To the widow, Florence E. Stephenson $2,000; to the daughter Myrtle Stephenson, $700; and to the daughter, Ethel Stephenson $800. The court instructed the jury that they could not find any damages for the married daughter. After verdict a motion was made for judgment notwithstanding the verdict, and for a new trial. These motions were denied, and a judgment was entered in accordance with the verdict. The defendants have appealed from that judgment.

It is urged, first, that the court erred in denying the motions for a directed verdict, and the motion for judgment non obstante.

The facts are substantially as follows: On the day named the deceased was a mail carrier, carrying mail between White Swan and North Yakima, in Yakima county. At about noon of that day, when he was driving a light wagon to which was attached a team of horses and carrying one passenger, he reached the main road leading into North Yakima a few miles therefrom. He stopped his team and wagon on the left-hand side of the road. The road at this point was a graveled turnpike 17 feet in width. Running parallel with this graveled road and to the right of it was a common dirt road about 5 feet wide. This dirt road was about 2 feet lower than the main traveled graveled road. Between the dirt road and the graveled road there was a strip of weeds or small sagebursh and gravel. This strip was about 4 feet wide and inclined to the dirt road, so that vehicles were readily driven from one road onto the other. Mr. Stephenson, after stopping his back at the left-hand side of the graveled road, left the passenger holding the team, while he had a conversation with a man who was working upon the road. He then returned to the back part of his wagon, and was drawing a rope therefrom at the hind wheel and on the right-hand side of the wagon. He was standing about the center of the graveled road. Ahead of Mr. Stephenson's wagon and on the left thereof, and outside of the graveled road, was a buggy standing, with a horse tied behind it. While Mr. Stephenson was at the back of his wagon taking the rope therefrom, Miss Parton came up, driving an automobile in the same direction Mr. Stephenson's team was headed. When 200 or 300 yards away, she saw him and signaled with her automobile horn. Stephenson glanced in that direction, but continued to take the rope from his wagon. Miss Parton drove up to him, and, the witnesses for the plaintiff testified, struck him with the front of her automobile, knocked him down, dragged him a few feet, and stopped her automobile before the hind wheel thereof ran over him. The day was clear and bright. The surface of the road was level and smooth, and there was no one else in the road, and nothing to obstruct the view in either direction for several hundred yards. There is some evidence in the record to the effect that Miss Parton, after she blew the horn of her automobile, did not see the deceased until she was upon him. The defense was that when Miss Parton drove up near to where Mr. Stephenson was standing, he turned and stepped a few steps in front of the automobile, and that in doing so, Miss Parton could not escape striking him.

It is first argued by the appellants that there was no evidence of negligence on the part of Miss Parton; and, second, that the evidence shows contributory negligence on the part of the deceased. If the facts are as stated by the respondent's witnesses, that Mr. Stephenson was standing on the right side of his wagon, drawing a rope therefrom, it was clearly the duty of Miss Parton, who was passing him in that position, to avoid him. The evidence shows that there was ample room in which to avoid him. It is negligence to run upon a man who is standing in the highway surrounded by the circumstances here related. While it is no doubt true that a person in a highway must use care, yet when one is rightfully in the highway, and standing there, another person certinly cannot run him down without being guilty of negligence. If, as is contended by the appellants, the deceased was in a place of safety, and stepped in front of the automobile where there was no chance to avoid being struck, the deceased was guilty of negligence. These questions, under the evidence, were clearly questions for the jury. We are satisfied that the court did not err, therefore, in refusing to direct a verdict in favor of the defendants, nor in refusing to grant a judgment notwithstanding the verdict.

Upon the trial the court instructed the jury as follows:

'If you find that the deceased, Oliver P. Stephenson, at the time and place alleged in the complaint, was standing by his vehicle in the public highway in the act of taking a rope therefrom in full view of the defendant, Ruth Parton, and while so standing, without changing his position, said Ruth Parton negligently and carelessly drove the automobile, or negligently and carelessly permitted it to run against him, without exercising reasonable care to avoid him, and thereby caused injuries from which he died, she would be guilty of negligence, and the plaintiff would be entitled to a verdict. In this connection I also instruct you that, even though you may not be

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