Turnquist v. Rosaia Bros., Inc.

• Decision Date: 18 October 1938
• Docket Number: 27102.
• Citation: 196 Wash. 434,83 P.2d 353
• Parties: TURNQUIST v. ROSAIA BROS., Inc.
• Court: Washington Supreme Court

83 P.2d 353

196 Wash. 434

TURNQUIST v. ROSAIA BROS., Inc.

No. 27102.

Supreme Court of Washington

October 18, 1938

Department 2.

Appeal from Superior Court, King County; Clay Allen, Judge.

Action by Herman M. Turnquist against Rosaia Brothers, Inc., to recover damages for personal injuries alleged to have been sustained as the result of defendant's negligent operation of an automobile.From a judgment for plaintiffdefendant appeals.

Reversed with instructions to dismiss the action.

Roberts & Skeel and W. R. McKelvy, all of Seattle, for appellant.

Donald L. Gaines, of Seattle, for respondent.

BEALS Justice.

At about eleven o'clock in the evening, July 31, 1936plaintiff, Herman M. Turnquist, was walking east on Denny Way, approaching that street's intersection with Aurora avenue, an arterial highway.Aurora avenue runs north and south, and ends at Denny Way, which runs east and west.Wall street, from the southwest, and Seventh avenue, from the southeast, run into the intersection, and with Aurora avenue form a Y.The paved portion of Denny Way is a little over forty feet wide, and that of Aurora avenue is over sixty feet in width.From a point about a hundred feet north of its intersection with Denny Way, the easterly portion of Aurora avenue fans out along a curve, making the pedestrian crossing on Denny Way, as marked on the pavement, one hundred twenty feet, or a little more, from curb to curb.

Plaintiff reached the westerly margin of Aurora avenue, and started across so as to continue his progress along Denny Way.When he had proceeded about forty-five feet from the westerly curb, he noticed a light panel delivery truck, belonging to defendant, Rosaia Bros., Inc., a corporation, proceeding northeasterly along Wall street, plaintiff stating that the truck was then some feet south of the intersection of Wall street with Denny Way.Plaintiff started to run in an easterly direction, angling a little to his left, passing safely in front of the truck, but Before he reached the curb, he was struck by a Chevrolet sedan, driven by one Glenn Andrews, which was turning north on Aurora avenue from Seventh avenue.Plaintiff was thrown some distance forward, and suffered injuries for which he sought damages against defendant, alleging in his complaint that the driver of defendant's truck had been negligent in failing to observe the street ahead of him carefully; in failing to keep his car under control; in driving at an unlawful and excessive rate of speed; and in refusing to yield the right of way to plaintiff.Defendant's truck did not strike plaintiff at any time, but stopped Before it reached the place on the pavement where plaintiff was lying after he had been struck by the Chevrolet.

The case was submitted to a jury, which returned a verdict in plaintiff's favor, and from a judgment entered against it upon this verdict, defendant has appealed.

Error is assigned upon the denial of several motions interposed by appellant for judgment in its favor as matter of law; upon the denial of appellant's motion for a new trial; upon the giving of one instruction; upon the refusal to give certain instructions requested by appellant; and upon the entry of judgment in respondent's favor.

The intersection of the four streets above referred to makes the crossing dangerous and one that requires care, both on the part of pedestrians and the drivers of motor vehicles.During the last one hundred feet of approach to this intersection along any street, a driver has not a clear view of the traffic upon all of the streets for a distance of three hundred feet back from the intersection.We do not find in the record any evidence which supports respondent's allegations that appellant's driver negligently failed to keep a proper lookout, or that he failed to at all times maintain proper control over his truck.Aurora avenue is divided into eight lanes, which are indicated by yellow lines on the pavement.A narrow parking lane is indicated on each side of the street, then three traffic lanes for northbound cars on the east side of the street, and three traffic lanes for southbound traffic on the west side.There is no evidence that there was any traffic from the north on Aurora avenue, approaching Denny Way.Respondent testified that the only cars which he saw were approaching from the south.The Andrews car, which struck respondent, crossed Denny Way, and proceeded north on the easterly traffic lane.Appellant's truck crossed Denny Way, and proceeded along the second traffic lane.

The testimony as to the speed of appellant's truck is in dispute.Respondent testified that when he first saw the truck, it was on Wall street, about fifty feet back from the intersection, and that the truck was approaching 'pretty fast.'Respondent made no other estimate of the speed of this car, and testified that he did not observe it after he started to run.He did not testify as to the speed of the car, or whether it slowed down as it entered the intersection.

Andrews, the driver of the Chevrolet, who had pleaded guilty to a charge of reckless driving in connection with the accident, testified that he was traveling between twenty-five and thirty miles an hour, and that appellant's truck was proceeding at about the same rate.It may be noted, however, that although this witness testified that he was a few feet behind appellant's truck, he, after striking respondent, did not stop his car until he had proceeded from fifty to one hundred feet beyond the point where respondent fell, while, on the contrary, appellant's truck stopped Before it reached respondent.

One other witness for respondent, Mrs. G. W. Farrar, whose testimony is hereinafter referred to, stated that appellant's truck was proceeding at thirty or thirty-five miles per hour.While the testimony of this witness as to the speed of appellant's car was greatly weakened on cross-examination, the jury had a right to consider it for what it was worth, and we cannot say as matter of law that its effect was entirely destroyed.

Several witnesses, some of them apparently entirely disinterested, testifying for appellant, variously estimated the speed of the truck up to twenty-five miles per hour.Several witnesses agreed that appellant's truck had made a wide turn in entering Aurora avenue, and took its place upon the second lane of traffic from the easterly curb.There was no testimony to the contrary.

The jury, however, may have found from the evidence that appellant's truck crossed the intersection at a speed greater than that allowed by an ordinance of the city of Seattle, pleaded and relied upon by respondent.

Appellant earnestly contends that the trial court should have granted one of its motions for judgment in its favor as matter of law, upon the ground that the evidence failed to disclose any negligence on the part of its driver, or that any act of his was the proximate cause of respondent's injury, and that the record shows beyond dispute that respondent was guilty of contributory negligence as matter of law.

A fire hydrant stands on the east side of Aurora avenue, approximately one hundred feet north of the intersection with Denny Way.Respondent testified that as he ran across the street, he angled somewhat to the north, stating that he was struck only a short distance north of the pedestrian crossing.Other evidence, however, was to the effect that respondent was struck almost as far north as the fire hydrant.The evidence is clear that respondent was struck by the Chevrolet sedan, and that he was not even touched by appellant's truck.

Mrs. Farrar, who, with her husband, was riding in a car following the Andrews sedan, testified, concerning the actual impact, that in the light of the truck's headlights, she saw respondent'hopping' across in front of the truck, and that she then saw the sedan hit respondent.The witness also testified that as their car entered the intersection, she noticed the truck approaching, and that the truck made a wide turn, causing the witness to think that the driver would strike the car in which she was riding.This is important as indicating that the truck was not cutting the corner.

Respondent himself testified as follows concerning the accident: He stood on the west corner of the intersection, looked toward both sides, and, seeing that the street was clear, started to walk across.As he approached the middle of the street, he saw appellant's truck approaching along Wall street.Respondent indicated on a map his position at this time, placing himself on the pedestrian crossing, about forty-five feet east of the west curb of Aurora avenue.He then had over seventy feet to go Before he would reach the east curb.On direct examination, respondent testified as follows concerning the accident:

'Q.Where were you then for the moment?A.In the middle of the street.

'Q.All right.A.And this car come down here pretty fast, so I start to run to save myself from the car, and I run over here (indicating), and the other car come down Seventh avenue and run into me and knocked me down and broke the leg.

'Q.Do you remember

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