Stewart v. Nelson

• Decision Date: 03 July 1933
• Docket Number: 24362.
• Citation: 173 Wash. 414,23 P.2d 412
• Parties: STEWART v. NELSON et ux.
• Court: Washington Supreme Court

23 P.2d 412

173 Wash. 414

STEWART v. NELSON et ux.

No. 24362.

Supreme Court of Washington

July 3, 1933

Department 2.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by Elizabeth Stewart against V. A. Nelson and wife. Verdict for defendants. From an order granting a new trial defendants appeal.

Reversed and remanded, with direction.

Ralph S. Pierce and Edwin J. Cummins, both of Seattle, for appellants.

Wm. R Bell and Beardslee & Bell, all of Seattle, for respondent.

MAIN Justice.

This action was brought to recover damages for personal injuries. The defendants denied liability, and affirmatively pleaded contributory negligence on the part of the plaintiff. The cause was tried to the court and a jury, and resulted in a verdict in favor of the defendants. The plaintiff moved for a new trial upon a number of grounds. The motion was sustained upon a particular ground stated in the order granting the new trial, from which order the defendants appealed.

The facts essential to be stated are these: The accident out of which the litigation arose happened May 19, 1931, at about 1:30 p. m., at or near the intersection of Pike street and Third avenue, in the city of Seattle. Pike street extends east and west, and Third avenue north and south. Upon both of these streets there are double street car tracks. To the north of the north track on Pike street there is a safety zone, which is indicated by buttons placed upon the pavement. At the intersection, which is in the business district of the city, and where traffic is heavy, is a signal light which regulates the movement of traffic, both vehicular and pedestrian, across the intersection. Vehicles approaching the intersection from the east on Pike street pass between the curb and the outer boundary of the safety zone, which is the place from which passengers board street cars and alight therefrom.

For some minutes prior to the accident, the respondent was standing on the sidewalk about twelve or fifteen feet east of the east crosswalk of the intersection across Pike street waiting to board a street car to take her to her destination which was down Third avenue. An automobile approached the intersection from the east on Pike street and stopped. Other automobiles from the rear were approaching, one of which was owned by the appellants and driven by the appellant V. A. Nelson. A street car approached which the respondent desired to take, and she left the sidewalk twelve or fifteen feet east of the east intersection line, passed behind the first automobile, was struck by the automobile driven by Nelson, and sustained the injury for which she sought recovery. To reach the safety zone, she did not use the crosswalk or pedestrian lane and enter that zone from the end.

In submitting the case to the jury, the court quoted section 46 of the traffic ordinance of the city of Seattle, which provides that: 'Pedestrians shall not step into that portion of the street open to moving traffic at any point between intersections in the business district except to board a street car or enter a safety zone at right angles. Safety zones shall be entered and left from the end nearest the intersection only'; and then stated that, if the respondent 'left the sidewalk for the purpose of entering such safety zone at any place other than the end of such safety zone next the intersection, then she would be guilty of negligence as a matter of law, and if such negligence upon her part contributed to the injury, if any, by her sustained, she cannot recover in this action.' The trial court, being of the opinion that too strict a construction had been placed upon the ordinance, granted the new trial for this specific reason, reciting the instruction in the order and stating therein definitely 'that plaintiff's motion for an order granting a new trial herein be, and the same is hereby, granted on the ground and for the reason that Instruction No. 12, as given by the court, puts too strict a construction on the ordinance referred to in said section and is not a correct statement of the law. * * *'

The first question is whether the instruction, as given, was correct. The ordinance expressly provides that 'safety zones shall be entered and left from the end nearest the intersection only.' This language is so clear and explicit as to leave no room for construction. The regulation of...