Mathews v. Lord Electric Co. , 30 Wash. 2d 794 ( 1948 )

I agree that the respondent, at the time and place of the accident, was not in the course of his employment within the meaning of the workmen's compensation act.

In this case appellant's driver, going south on Division street, entered the intersection with a green light and made a left turn to go east on B street, as Rem. Rev. Stat., Vol. 7A, § 6360-98 [P.P.C. § 295-47], gives him a right to do; the respondent, a pedestrian, entered the intersection with the same green light, his course being north across B street on the east side of Division street. So much of the majority opinion as purports to give the respondent a right of way under those circumstances is judicial legislation. I personally am disposed to believe that the pedestrian should have the right of way under such circumstances, but this court has no power or authority to give it to him, and it is not given by any statute. Strom v.Dobrin, 29 Wn.2d 198, 186 P.2d 906.

As pointed out by Judge Beals in his concurring opinion, had there been a driver proceeding north on the same side of the street as the pedestrian in this case, and had that driver made a right turn, the pedestrian might have been injured by a car which he had not had an opportunity to see, although, under Rem. Rev. Stat., Vol. 7A, § 6360-98, they both had the right to enter the intersection with the same green light. It is difficult to conceive of a case wherein the pedestrian would not recover in such a situation, not because the statute has given him a right of way but because no court or jury determining the facts would hold that he was guilty of negligence in not watching to the rear for a car there had been no opportunity for him to see. It is, however, a very cogent argument for the amendment of Rem. Rev. Stat., Vol. 7A, § 6360-98, to give a right of way over all vehicles to the pedestrian proceeding with a green light at a controlled intersection.

If there was any evidence of ordinary care on the respondent's part to take the question of contributory negligence to the jury, we could not, under our repeated holdings, reverse a general order granting a new trial, particularly when one of the instructions was unduly emphasized by being prefaced with the words, "Our Supreme Court has time and time again said. . . ." However, this case clearly falls within that classification wherein we have reversed orders granting new trials and directed dismissal of the actions because, there being no substantial conflict in the evidence, the contributory negligence of the plaintiffs was established as a matter of law.

I have written a dissent instead of joining in that of Judge Millard, which presents my views in the instant case, because more important than the determination of this particular case is the necessity of keeping the record straight on the proposition that the granting of rights of way is a legislative and not a judicial function.