Wood v. Copeland Lumber Co.

• Decision Date: 07 February 1949
• Docket Number: 30516.
• Citation: 202 P.2d 453,32 Wn.2d 490
• Court: Washington Supreme Court
• Parties: WOOD v. COPELAND LUMBER CO. et al.

202 P.2d 453

32 Wn.2d 490

WOOD v. COPELAND LUMBER CO. et al.

No. 30516.

Supreme Court of Washington

February 7, 1949

Department 1

Personal injury action by Carroll William Wood, by Estelle Wood, his guardian ad litem, against Copeland Lumber Company and another.Judgment for defendants and plaintiff appeals.

Reversed and remanded with instructions.

Appeal from Superior Court, King County; Malcolm Douglas, judge.

Congdon & Clemans and Stanley N. Kasperson, all of Seattle, for appellant.

Kahin Carmody & Pearson, of Seattle, for respondents.

JEFFERS Chief Justice.

This action was commenced in the superior court for King county by Estelle Wood, the mother and duly appointed guardian ad litem of Carroll William Wood, a minor aged thirteen years, against Copeland Lumber Company, a corporation, and Frank Pitardi, to recover damages for personal injuries alleged to have been received by the minor on February 28, 1946, as the result of his being struck by a truck owned by defendantCopeland Lumber Company, and being driven and operated at the time of the accident by defendant Pitardi, for and on behalf of the lumber company.

It was alleged that the sole and proximate cause of the accident and resulting injuries to Carroll Wood was the negligence of Frank Pitardi in the operation of the truck, which negligence consisted of the following acts and omissions:

'1.In operating defendant's truck at a high, reckless and unlawful rate of speed.

'2.In failing to have said truck under control.

'3.In driving said truck to its left or east side of said street.

'4.In failing to accord to the plaintiff the right-of-way to which he was entitled.

'5.In failing to keep a proper lookout or any lookout at all for pedestrians on said street.

'6.In failing to sound a horn or other signal device when the operator of defendant's truck saw, or in the exercise of reasonable care, should have seen that the collision with plaintiff was imminent.

'7.In driving defendant's truck off the main traveled portion of said street so as to strike plaintiff herein.

'8.In operating defendant's truck at all times herein mentioned in a careless, reckless and negligent manner.'

Defendants by their answer admitted that on the date and at the time mentioned, Carroll Wood sustained injury; that such injury was sustained by his coming in contact with a lumber truck driven by Frank Pitardi; that the truck was being driven for and on behalf of defendantCopeland Lumber Company; that the accident which caused the minor's injury occurred at or near the east side of Twenty-first avenue southwest, in Seattle, Washington.

Defendants denied the other material allegations of the complaint, and alleged affirmatively that the injury, if any, suffered by the minor was due to his negligence, in that

'He ran out into the street and into the truck of the defendant, the Copeland Lumber Co., a corporation, between intersections and without warning while chasing a ball with which he was playing which had been thrown into the right-of-way of the truck operated by the defendantFrank Pitardi.'

Plaintiff by her answer denied the affirmative matter contained in defendants' answer.

The cause came on for trial Before the court and jury on or about September 10, 1947, and thereafter, on September 18th, the jury returned a verdict in favor of defendants.On September 20th following, plaintiff filed alternative motions for judgment notwithstanding the verdict and for new trial.These motions were denied, and on October 20, 1947, a judgment was entered on the verdict in favor of defendants and dismissing the action.Plaintiff has appealed from the judgment entered.

The assignments of error all relate to the denial by the court of appellant's motion for new trial, and consist specifically of the following: In submitting to the jury instruction No. 14, which states:

'Under the ordinances of the City of Seattle, vehicles have the right of way over pedestrians at all points upon the public streets except at the intersections and crossing thereof.

'You are instructed that the term 'right of way' means the right to proceed.It puts the necessity of continuous observation and avoidance of injury upon the pedestrian when in the street at a place other than a crosswalk.You are instructed that the plaintiffCarroll Wood was under the necessity of exercising such observation in this case, and if he did not do so, he would be guilty of contributory negligence,'(Italics ours.) and instruction No. 19, which we quote:

'The plaintiffCarroll William Wood was under the duty to exercise his ordinary faculties for his own safety in crossing a public highway between intersections and under a duty to keep a continuous lookout for approaching traffic.Did he, under the circumstances, exercise such care and vigilance?Did he, under the circumstances, keep a reasonable and continuous lookout for traffic?If his not doing either proximately caused the accident, he cannot recover.

'You are instructed that if you find from the evidence in this case that a proximate cause of injury, if any, to the plaintiffCarroll Wood, was his crossing a public street in the City of Seattle between intersections while failing to look out for vehicles, and that he did not use reasonable care under the circumstances in doing so, then I instruct you that the plaintiffCarroll Wood was guilty of contributory negligence and that, regardless of any negligence on the part of the defendant's driver, your verdict must be for the defendant;'(Italics ours.) and the refusal of the court to submit to the jury the following instruction requested by appellant:

'There is one doctrine under which contributory negligence may not defeat the plaintiff's right to recovery, and that is known as the doctrine of the last clear chance.If, in this case, Billy Wood was negligently rushing across the street and into danger, and if the driver saw, or in the use of reasonable care should have seen, him thus negligently rushing into danger, in time, by the exercise of reasonable care, to avoid the accident, and failed to exercise such care when, had he done so, the accident would have been averted, then, in that case, negligence of the driver and not of the boy would constitute the proximate cause of the accident.'

Appellant contends that instructions Nos. 14 and 19 contained a misstatement of the test of contributory negligence and the standard of duty required of appellant, and she particularly contends that the following portion of instruction No. 14, to wit: 'It puts the necessity of continuous observation and avoidance of injury upon the pedestrian when in the street at a place other than a crosswalk,' and the following words in instruction No. 19, to wit: 'Under a duty to keep a continuous lookout for approaching traffic,' were prejudicial and harmful, and not a proper statement of the law under the facts in this case.Appellant further contends that under the facts in this case the only duty imposed upon Carroll Wood was that he exercise that degree of care which would reasonably and ordinarily be expected of a boy of his age, intelligence and experience, under like circumstances and conditions.

While no contention is made that there was not sufficient evidence to justify the jury's verdict, we are of the opinion that a brief statement of some of the facts should be set out, for the reason that whether or not the court erred in giving instructions Nos. 14 and 19 depends to some extent upon the particular facts in this case, for we stated in Crowl v. West Coast Steel Co.,109 Wash. 426, 433, 186 P. 866, 869:

'Circumstances may arise where the court may say, as a matter of law, that it would be the duty of the plaintiff in crossing the street to be constantly on the lookout to avoid danger.'

Carroll Wood, at the time of the injury, was thirteen years of age.Just prior to the accident he was playing handball with his friends, Harold Tuffs and Jerry Moore, the latter two boys being about the same age as Carroll.In playing this game, the boys were throwing the ball up against the side of the home of Jerry Moore, which is situated on the west side of Twenty-first avenue, southwest, in Seattle.Twenty-first avenue southwest is a graveled street running in a northerly and southerly direction.There are no sidewalks on either side of the street.There is a grassy strip along the east side of the street, and to the east of this grassy strip is a fence.The accident happened at about four-forty-five p. m., February 28, 1946, at which time the visibility was good, and there was no traffic on the street other than the truck being driven by respondent Pitardi.

Pitardi had turned on to Twenty-first avenue south of where the boys were playing their game, and had proceeded north looking for a certain address.He had a load of two-by-four's on his truck, which was a 1941 GMC one and one-half ton truck.He had driven north for some distance beyond the point where the boys were playing, and failing to find the number, he turned around and proceeded south down the street again.There is a grade to the south on this street.As to what happened thereafter, so far as the actions of Carroll Wood are concerned, the speed of the truck, and the point where either the truck struck Carroll or Carroll ran into the truck, the testimony is in dispute.

Pitardi's testimony generally is to the effect that when he was about forty-five feet north of where the boys were playing he observed the ball go over Carroll Wood's head; that Carroll turned around and chased it across the road; that when he(Pitardi) saw Carroll crossing the road he began to swerve to the left to avoid him, thinking that the boy would stop or go back; that he...