Volz v. Byerly , 135 Wash. 455 ( 1925 )

Bridges, J.

— The plaintiff and a lady companion were walking along a paved road in the town of Seaside, Oregon, when she was struck by the defendant’s automobile and injured. Tbe substance of tbe plaintiff’s testimony was tbat sbe and ber companion were walking single file on tbe extreme rigbt-band side of tbe paved portion of tbe road, tbe plaintiff being slightly in advance of ber companion; tbat tbe defendant’s car struck ber, knocked ber down on tbe wet pavement, and the front wheel being at tbe small of ber back, pushed ber along on tbe pavement for a considerable distance and until tbe car was stopped. Tbe defendant ’s testimony tended to show tbat tbe plaintiff and ber companion were walking side by side on tbe rigbt-band side of tbe pavement, and as tbe automobile approached them, tbe driver blew bis born, and tbat tbe plaintiff first stepped to ber right and then suddenly stepped to ber left immediately in front of tbe car. There was a verdict for $1,000. Tbe only question discussed by tbe appellant is an alleged error in one of tbe instructions given by tbe court to tbe jury, and alleged excessiveness of tbe verdict.

Tbe court instructed tbe jury tbat

“Tbe automobile bad a perfect right to be on tbe street and to be driven along tbe street, and tbe plaintiff bad a similar right to be on tbe pavement and to walk along tbat pavement. Sbe did not have tbe right to step off' tbe pavement on tbe — tbe law does not require ber to do tbat, does not require ber to step off tbe road to the bank beside tbe pavement. She had a perfect right to travel along the pavement as she was traveling. Sbe, of course, would have no right to obey tbe signal and step to one side and then step back in front of tbe car. Their rights to travel on the highway are equal. . . .”

Tbe part objected to is tbat portion which we have placed in italics.

It is claimed tbat, since there was testimony tending to show tbat tbe respondent stepped first to one side and then to tbe other, so as to mislead tbe driver of the automobile, the instruction had the effect of telling the jury that she had a right to so conduct herself.

It is clear to us that the court intended nothing more than to inform the jury that the plaintiff had a right to walk on the right-hand side of the pavement. The jury must have so understood the instruction. That the court so intended and that the jury so understood is shown by the sentence immediately following that objected to, where the court tells the jury that the respondent “would have no right to obey the signal and to step to one side and then step back in front of the car.” We are unable to find error in the instruction.

The testimony tends strongly to show that, for a long while after her injury, the respondent was exceedingly inconvenienced as a result of it. There was testimony that she fell in front of the wheel and was pushed by it along the pavement for probably 20 or 30 feet. Such could hardly have happened to her without injuring her to quite an extent. While the verdict, in our opinion, is amply sufficient to compensate her for her injury, we cannot say that it is the result of passion or prejudice. The case was tried in a very sober and matter of fact way. Nothing occurred to arouse the passion of the jury.

The judgment is affirmed.

Tolmax, O. J., Parker, Mitchell, and Askrex, JJ., concur.