Van Cleve v. Betts, 1850--II

• Decision Date: 19 January 1977
• Docket Number: No. 1850--II,1850--II
• Citation: 559 P.2d 1006,16 Wn.App. 748
• Parties: Lillian L. VAN CLEVE, Respondent, v. Esther M. BETTS and John Doe Betts, husband and wife, Appellants.
• Court: Washington Court of Appeals

Page 748

16 Wn.App. 748

559 P.2d 1006

Lillian L. VAN CLEVE, Respondent, v. Esther M. BETTS and John Doe Betts, husband and wife, Appellants.

No. 1850--II.

Court of Appeals of Washington, Division 2.

Jan. 19, 1977.

William R. Hickman, Reed, McClure, Moceri & Thonn, Seattle, for appellants.

William J. Rush, Rush & Hayes, Tacoma, for respondent.

REED, Judge.

Defendant Esther Betts appeals from a judgment entered against her in the sum of $25,000 for injuries sustained by the plaintiff, Lillian Van Cleve. The facts giving rise to this appeal are as follows:

On March 18, 1973, Mrs. Van Cleve was walking home from work and had stopped at the southwest corner of the intersection of Pacific Avenue and 24th Street in Tacoma. When the pedestrian control signal indicated 'Walk,' she entered the crosswalk and began walking east across Pacific Avenue. Defendant, who was proceeding west on 24th Street, made a left turn onto Pacific Avenue and collided with Mrs. Van Cleve. The investigating officer determined that the point of impact was in the crosswalk at the dividing line between the center and curb lanes on the southbound side of Pacific Avenue.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

At trial there was evidence that the Betts' vehicle had not entered Pacific Avenue parallel to the lanes of traffic, but rather had angled slightly across the dividing line so that the car was mostly in the inside lane but starting to enter the curb lane at the time of the accident. Although there were no dents in the vehicle, a handprint located between the right front wheel and the right front door supports an inference that Mrs. Van Cleve might have come into contract with the car somewhere in that vicinity. Plaintiff's testimony was that she had looked both ways before entering the crosswalk, but had not seen the defendant's vehicle until it was too late to get out of the way. She estimated that she had taken five to seven steps away from the curb before the collision. Mrs. Betts testified that she had looked for other traffic and pedestrians prior to making her turn, and that she was unaware of plaintiff's presence until she felt or heard a thud, at which time she looked in her Left rear view mirror and observed Mrs. Van Cleve lying in the street. As a result of the accident, Mrs. Van Cleve sustained bruises, a gash on her forehead, and a fractured skull which caused hospitalization for 9 days and resulted in her missing work from March 18 through May 25, 1973.

On appeal Mrs. Betts assigns error to (1) the trial court's directing a verdict finding that defendant was negligent as a matter of law and that her negligence was a proximate cause of the plaintiff's injuries; (2) the trial court's failure to direct a verdict holding that the plaintiff was contributorily negligent as a matter of law for walking into the side of defendant's car; (3) the trial court's denial of defendant's requested instructions relating to the duty of a pedestrian in a crosswalk and to the contributory negligence of a pedestrian who walks into the side of a car; and (4) the trial court's denial of defendant's motion for a new trial. Finding no grounds for reversal, we affirm the decision of the trial court.

We recently reiterated the longstanding rule that a trial court may direct a verdict on questions of negligence in only two classes of cases: (1) where the circumstances of the case are such that the standard of care is the same under all circumstances and its measure is defined by law; and (2) where the facts are undisputed and only one reasonable inference can be drawn therefrom. Breivo v. Aberdeen, 15 Wash.App. 520, 550 P.2d 1164 (1976). See also Baxter v. Greyhound Corp., 65 Wash.2d 421, 397 P.2d 857 (1964); McQuillan v. Seattle, 10 Wash. 464, 38 P. 1119 (1895). A motion for a directed verdict is properly granted only if when viewing the evidence in the light most favorable to the nonmoving party, it can be said as a matter of law that there is no evidence or reasonable inferences therefrom to support the position of the nonmoving party. E.g. Shelby v. Keck, 85 Wash.2d 911, 541 P.2d 365 (1975); Wold v. Jones, 60 Wash.2d 327, 373 P.2d 805 (1962).

Plaintiff's motion for a directed verdict falls into the first class listed above; RCW 46.61.055(1) ¹ requires motor vehicles to yield the right-of-way to pedestrians lawfully within an intersection, and RCW 46.61.060(1) ² gives pedestrians the right-of-way when the pedestrian control signal indicates 'Walk.' Failure to yield the right-of-way to a pedestrian lawfully in the crosswalk is negligence as a matter of law if the pedestrian was seen or should have been seen by the driver. Oberlander v. Cox, 75 Wash.2d 189, 449 P.2d 388 (1969). Here, there being no evidence that Mrs. Van Cleve either left a place of safety so suddenly that Mrs. Betts had no opportunity to yield the right-of-way or that plaintiff proceeded against a red light or 'Don't Walk' signal, we can reach no conclusion but that Mrs. Van Cleve was lawfully in the crosswalk. The evidence also indicates that plaintiff was a substantial distance from the curb and that there were no visual obstructions blocking defendant's view; accordingly, we conclude that Mrs. Betts, had she maintained a proper lookout, would have seen Mrs. Van Cleve. Under these facts it was proper to direct a verdict holding that defendant was negligent as a matter of law for failure to yield the right-of-way.

Although violation of a statutory duty may be negligence as a matter of law, before imposing liability for such a violation, it is also necessary to find that the negligence proximately caused the harm. France v. Peck, 71 Wash.2d 592, 430 P.2d 513 (1967). Ordinarily questions of proximate cause are best resolved by a jury, but when the facts are undisputed and the inferences therefrom are not subject to differences of opinion, then proximate cause is a question of law to be decided by the court. France v. Peck, supra at 597, 430 P.2d 513. Here it is quite clear that defendant's negligence was a proximate cause of plaintiff's harm; the accident resulting in injuries to Mrs. Van Cleve was a part of the natural and continuous sequence of events which flowed from Mrs. Betts' failure to yield the right-of-way, E.g. Stoneman v. Wick Constr. Co., 55 Wash.2d 639, 349 P.2d 215 (1960), Harris v. Burnet, 12 Wash.App. 833, 532 P.2d 1165 (1975), and under such circumstances we think it was proper to direct a verdict on the question of proximate cause.

As support for her second assignment of error, defendant relies upon Iwata v. Champine, 74 Wash.2d 844, 846, 447 P.2d 175, 176 92 P.2d 1113 (1939), for the proposition that statement:

We have said that a pedestrian who walks or runs into the side of a car, the front of which has passed him, is guilty of contributory negligence as a matter of law. Estill v. Berry, 193 Wash. 10, 74 P.2d 482 (1937).

We decline to apply this holding to the instant case for two reasons. First, the apparent rationale for this conclusion is to follow Estill, and found that the two observable car, the pedestrian has utterly failed to maintain a lookout either because he did not look for approaching traffic, or because if he did look, his observation was so careless that he did not see what was there to be seen. Estill v. Berry, 193 Wash. 10, 17, 74 P.2d 482 (1937), (citing 5--6 X. Huddy, Encyclopedia of Automobile Law § 88 at 154 (9th ed. 1931)). This explanation, which presumes that the pedestrian has a duty to maintain a lookout, is seemingly in conflict with the holding in Jung v. York, 75 Wash.2d 195, 449 P.2d 409 (1969). The court there first referred to Johnson v. Johnson, 85 Wash. 18, 147 P. 649 (1915), which held if the conceded right-of-way to the pedestrian means anything at all, it puts the duty of continuous observation and avoidance of injury upon the driver of the automobile when approaching a crossing. Jung v. York, supra, 75 Wash.2d at 198, 449 P.2d 409. After nothing that a corollary of that rule is that the pedestrian rightfully in a crosswalk has the right to assume that operators of approaching vehicles will obey the law and yield the right-of-way until he knows or should know to the contrary, the court in Jung went on to hold:

A pedestrian cannot at one and the same time have a right to assume that the right of way will be yielded and a duty to look to make sure that it is. In the absence of circumstances which would alert the pedestrian rightfully in the crosswalk to the fact that an approaching vehicle is not going to yield, negligence cannot be predicated on his failure to look and see the vehicle in time to avoid the accident.

Jung v. York, supra at 198, 449 P.2d at 412; see also Johnson v. Strutzel, 14 Wash.App. 620, 544 P.2d 47 (1975).

The apparent conflict between Jung and Iwata is readily reconcilable if we recognize that the Iwata holding is not a universal rule, but rather is to be applied only when the facts demonstrate the pedestrian has breached some duty. ³ Accordingly, a pedestrian who as in Iwata suddenly leaves a place of safety and runs into the side of a car is contributorily negligent as a matter of law for breach of the statutory duty imposed upon pedestrians by RCW 46.61.235(2). ⁴ Likewise, the pedestrian who is lawfully in the crosswalk but who ignores circumstances alerting him to the impending failure of a vehicle to yield the right-of-way and consequently walks into the side of a car, is guilty of contributory negligence as a matter of law for breach of the limited duty of observation delineated in Jung v. York, supra. Here, one can reasonably infer from the facts that Mrs. Van Cleve breached no duty and therefore was not contributorily negligent. The evidence is that she was a substantial distance from the curb, and there is no indication that circumstances were present which would have alerted her to the fact that Mrs. Betts was not going to yield the right-of-way....