Elmberg v. Pielow

Tolman, J. This action was brought by respondent, as plaintiff, to recover from appellants, as defendants, damages flowing from personal injuries alleged to have been sustained by reason of having been struck by appellants’ automobile. The case was tried to a jury [590] which found a verdict in respondent’s favor for $1,089. This appeal is from a judgment entered on the verdict. The facts, admitted and disputed, which may he said to be fairly established by the verdict, are substantially as follows: Respondent, a young woman twenty-one years of age at the time of the accident, left her home on Harvard avenue, in the city of Seattle, about 9 o’clock in the evening, and walked southward on the east side of the avenue to Pike street, for the purpose of boarding an east-bound street car. When she reached the north line of Pike street, she observed a street car coming from the east about a block distant. She looked in both directions for other traffic and, seeing none, stepped from the curb and proceeded to cross Pike street. As she did so the motorman in charge of the approaching street car, sounded his gong vigorously, and though she felt that she might pass in safety before it reached her, yet out of an abundance of caution, she halted her progress and took a leisurely forward step or two, watching the car as it approached, and watching also for other traffic of which she still saw none. As the street car neared her, going some five miles per hour, appellant Chester B. Pielow, driving his automobile on the north side of Pike street, approached from the same direction as the street car and slightly behind it. He saw respondent when he was at least twenty-five feet distant from her, and traveling at about ten miles per hour • could easily have stopped, but seeing that respondent had looked toward him he assumed that she saw him, and would permit him to pass between her and the street car. Traveling twice as fast as the street car, he attempted to do so without sounding his horn, or giving any warning of his approach. Respondent was struck either by the right-hand front of [591] the automobile, or, as appellant asserts, unconscious of tbe automobile, she stepped forward and was struck by tbe rear of tbe machine as it passed ber, and thus received the injuries complained of. Appellants assign error upon tbe refusal of tbe trial court to grant a nonsuit, and upon giving and refusal of certain instructions, but all of these assignments of error, as we view the case, involve practically tbe same question, i. e., respondent being upon tbe cross-walk in tbe act of crossing tbe street, and having tbe right of way under tbe city ordinance, was it ber duty to see and avoid the approaching automobile, or was appellant Pielow bound to give sufficient warning and to avoid coming within striking distance of respondent while sbe was using tbe cross-walk in an orderly and reasonable manner? We can see no difference in principle between this case and tbe case of Olsen v. Peerless Laundry, 111 Wash. 660, 191 Pac. 756. True tbe driver here may have bad more reason to believe that respondent saw him, but be was tbe only witness who testified to any fact that might give rise to such a belief. He was an interested witness and tbe question was one of fact for the jury. It was said in Olsen v. Peerless Laundry, supra: “Again, there was introduced in evidence an ordinance of tbe city of Seattle which expressly gave to pedestrians tbe right of way at street intersections. It may be difficult to lay down any fixed rule showing just what rights and privileges this right of way may give to pedestrians or take from tbe drivers of automobiles. It certainly does not mean that tbe driver of a truck or automobile would have tbe right to use tbe intersection without any regard for tbe rights of tbe pedestrians, or in such manner as would require tbe latter, as a matter of right, to stop and yield tbe right of way.” [592] a doctrine which we desire to reaffirm and emphasize. All too frequently, pedestrians are injured by automobiles and when the subject is covered by ordinance, as here, we have tried to make plain that the automobile driver has the right of way between street intersections and, when the accident occurs at such a place, the burden is upon the pedestrian to show that he used every reasonable care for his safety. Crowl v. West Coast Steel Co., 109 Wash. 426, 186 Pac. 866. While on the contrary, when the accident occurs at street intersections, the pedestrian has the right of way and the burden is on the driver to establish that he used every reasonable care to avoid inflicting the injury. The trial court appears to have had these cases in mind, and his instructions were as favorable to appellants as the rule will permit. It is also urged that the verdict was excessive; but we cannot so hold. The respondent suffered considerable pain and shock, must bear a scar on her chin (though not a badly disfiguring one), through life, and by the loss of four front teeth was put to the expense of having them replaced artificially, which work will have to be renewed from time to time, and the evidence shows that they will not give her the comfort or service of the natural teeth which she lost. Finding no error the judgment is affirmed. Holcomb, C. J., Mount, Mitchell, and Main, JJ., concur.