Woodbury v. Hoquiam Water Co., 19733.

• Decision Date: 29 March 1926
• Docket Number: 19733.
• Citation: 138 Wash. 254,244 P. 565
• Parties: WOODBURY v. HOQUIAM WATER CO.
• Court: Washington Supreme Court

244 P. 565

138 Wash. 254

WOODBURY v. HOQUIAM WATER CO.

No. 19733.

Supreme Court of Washington

March 29, 1926

Department 2.

Appeal from Superior Court, Grays Harbor County; Campbell, Judge.

Action by Chris Woodbury, as administrator of the estate of Josie E Woodbury, deceased, against the Hoquiam Water Company. Judgment for plaintiff, and defendant appeals. Affirmed.

F. L. Morgan, of Hoquiam, and Poe, Falknor Falknor & Emory, of Seattle, for appellant.

W. H Abel, of Montesano, and A. M. Abel, of Aberdeen, for respondent.

MITCHELL J.

This action was brought to recover damages for the death of Mrs Woodbury, the result of an automobile accident on Lincoln street in the city of Hoquiam. The automobile was being driven by an employee while engaged in business of the Hoquiam Water Company, a corporation. Negligence and contributory negligence were the issues. Verdict and judgment were for the plaintiff. Defendant has appealed.

The first assignment of error is that over a challenge for cause a juror named Husby was allowed to serve as a trial juror, the appellant exercising all of its peremptory challenges. He did not witness the accident or any of the facts leading up to it, but was among those who went to the scene for a short time after it happened. He got there about the time the injured person was taken away. He heard others at that time talk about the accident, but could not recall any one that he talked with except one person, who counsel for respondent admitted was one of plaintiff's witnesses for the trial. He could not remember anything he had heard, did not form any opinion at that time as to who was to blame for the accident, and had no such opinion at the present time. He was asked by counsel for appellant, and answered, as follows:

'Q. Do you think, if the matter was just left right where it is now and no testimony introduced at all, that you could render a verdict in the case. Ans.: No, sir.'

He was further asked if a controversy arose--'a difference as to what was actually said there by those witnesses at that time--would you take the testimony that was given here or take your own opinion as to what was said.' To which he answered, 'I would take the testimony that was given here.' He was persistent in this attitude of mind, and seems to have been frank. The trial court, who took some part in questioning him, was satisfied there was no cause to excuse him, and upon a consideration of the whole examination we can find nothing to justify a disturbance of that ruling.

In several appropriate ways before and after the verdict appellant questioned in the trial court, as it does on the appeal, the evidence bearing upon the negligence charged against it and that with reference to the counter charge of the contributory negligence of the decedent in its contention that the case should not have gone to the jury, but should have been decided as a matter of law in its favor.

There was a decided conflict in the evidence in material respects. Lincoln street, which runs north and south, is 35 feet wide and paved. It has curbs and cement sidewalks. It is straight considerable distance each way from the place of the accident. The accident occurred in the daytime at a place where Grand avenue runs from the west squarely into Lincoln street. Mrs. Woodbury, the decedent, and Mrs. Kellogg, on returning from an automobile drive, stopped the car, driven by Mrs. Kellogg, facing north on the east side of Lincoln street at a point slightly north of the south sidewalk of Grand avenue extended across Lincoln street. Mrs. Woodbury got out of the car on the right-hand side, passed around the rear of it, and started to cross Lincoln street towards the south sidewalk of Grand avenue on her way to her home situated on the south side of Grand avenue about a block east of Lincoln street. Appellant's car was driven from the north on its right-hand or westerly side of Lincoln street. From this point on, in the trial of the case, the conflict in the evidence occurs.

On behalf of the respondent, it shows that the decedent immediately upon clearing the automobile to the rear, stopped and looked both ways on Lincoln street. At that time a grocery delivery car several hundred feet away was coming from the south on her side of the street, the appellant's car was coming from the north approximately 400 feet distant and almost immediately in front of her an automobile a very short distance away on Grand avenue was driving westerly towards Lincoln street that she was crossing. After stopping and looking, 'she went straight across and never hesitated one moment.' On reaching a point about 8 feet from the westerly curb of the street, she was struck by appellant's car, 'her feet went up in the air about 8 feet, and then she came down and struck on the head of the radiator.' She dropped off after the car had gone 75 or 80 feet, and the car was stopped a short distance further on. Appellant's car did not swerve; it went straight. No warning was given by the sounding of a horn or other signal device. No application of brakes was heard, and there were no skid marks on the pavement. Covering the distance of about 1,200 feet before the accident, different witnesses at different points along the way estimated the speed of the car at 30 to 40 miles an hour for part of the way and 30 to 35 miles an hour at...