Kerr v. Floyd , 25 Wash. 2d 135 ( 1946 )

¹ Reported in 169 P.2d 349. Plaintiff brought this action to recover damages for personal injuries she sustained in a collision with an automobile while walking across First avenue south at the intersection of Atlantic street, in Seattle. She was proceeding east on the north crosswalk of Atlantic street. The automobile, driven by defendant Levi H. Floyd, was going south on First avenue. Upon issues joined on negligence and contributory negligence, the cause went to trial before the court without a jury. The court made findings favorable to plaintiff and entered judgment for her in the sum of seventy-five hundred dollars. Defendants appeal.

The questions on appeal are whether the evidence preponderates against the findings upon (1) the issue of negligence; (2) upon the issue of contributory negligence; and (3) as to the amount of damages.

Respondent's version of the accident is as follows:

"Q. What side of Atlantic Street did you go that time? A. On the northwest corner? Q. That is when you got to First Avenue? A. Yes. Q. In your own words tell the Judge what happened as you crossed the street. A. Well, when I got to the corner I looked to the left and the traffic was stopped and the green light was on. Q. Which way? A. In my favor. Q. For east-west traffic? A. Yes. Q. Were there any cars parked at the curb? A. Well, not near the crosswalk there was not but there was either a truck or a bus first and he came at me —

"THE COURT: I understand you to say there were no cars parked right at the crosswalk? A. Not parked but they were waiting to go south. He came from either the second or the third lane. He came and hit me. I should say the third lane, — the car that hit me.

"Q. How was the signal when you walked in the street? A. Green in my favor. Q. At the time you were struck did you hear any horn blown? A. No. Q. Where was the other bus or the truck that you say you saw there as you started across? A. Between this car and the curb. Q. What was its condition as to moving or stopped? A. It was stopped, — no other car that was moving except the one that hit me. Q. Did you notice whether or not that car started up or was coming down on that street? A. No, I could not tell that.

"Q. Mrs. Kerr, can you tell what part of that car struck you, if you know? A. Yes, because the mark of the fender was on my leg and is there yet. Q. Which fender? A. The front fender. The two marks of the front fender was on the side of my left leg. Q. How far were you thrown, if any? State what happened to you. A. Well, he hit me on this side. Q. You are indicating your low left leg? A. Yes. He went this way and I think that is when I broke my back. Then he threw me about six feet and I thought he was going to run over me but he stopped before he could. Q. Which way did it throw you? A. South. I didn't lose consciousness at all. I knew what was going on and I tried to get up but couldn't.

"Q. Did someone help you up? A. Yes some man ahead of me and he turned around and helped me up. Q. Which way was this man ahead of you going? A. The same way I was going. Q. On the crosswalk? A. Yes. . . . Q. Did you ever see the car you collided with before the accident. A. No, not that I know of. Q. I mean at that time you didn't? A. I saw it coming at me. I was not able to get out of the way."

In saying that she was struck by the front fender, it is clear respondent meant the front bumper.

Appellant Levi Floyd testified that, as he approached Atlantic street from the north, the light turned green in his favor, and that he proceeded into the intersection without stopping. He admitted that the truck with the trailer referred to by respondent was at a standstill waiting for the light to turn; that a bus, headed north, was standing on the south side of Atlantic street. He stated, however, that, as he entered the intersection, respondent ran into the side of his car and struck the right rear fender. In this he was corroborated by a witness who testified that he had been standing on the northwest corner of the intersection when the respondent rushed past him and into the street, after the light had turned red against traffic on Atlantic street; that she proceeded in front of the standing truck and ran into the side of appellant's car. A policeman who was near the corner at the time testified that he had examined appellant's car and the

". . . only thing we could find on the right rear fender was the brush mark where a pedestrian some time had left a brush mark, scraping the right rear fender, but there were no dents."

[1] Viewing the evidence as a whole, we have no hesitancy in saying that the trial court was fully warranted in holding that respondent had started across First avenue with the green light, notwithstanding the testimony of the man on the corner to the contrary. It was her word against his, and her word is corroborated by the fact that vehicular traffic was at a standstill on First avenue, and pedestrian traffic was moving across it.

[2] Appellant's negligence is therefore clear, notwithstanding the light had turned green in his favor before he reached the intersection. For a pedestrian who enters an intersection with a green light has the right of way; and it is the duty of an automobile driver to anticipate the presence of such a pedestrian and yield the right of way to him.

[3] Appellants urge that, even though the pedestrian has the right of way, the duty to exercise reasonable care is still upon him; and that one who walks into the side of an automobile cannot be said to have exercised reasonable care. This proposition may be conceded. The trial court, however, found upon the evidence that respondent had been struck by the front bumper of the appellant's car; and we are not prepared to say that the evidence preponderates against the finding.

[4] Appellants argue that the finding is contrary to the physical facts. The physical facts referred to are that the front bumper of appellant's car is seventeen inches from the ground and the mark on respondent's leg, as she stood, was twelve inches from the ground; and the distance from the ground "where the hind fender makes a straight corner behind the wheel . . . is thirteen inches off the ground."

We do not think these so-called physical facts are such as to overcome the sworn testimony of the respondent.

[5] We do not think the damages awarded by the trial court are excessive.

That respondent was very severely injured, there is no doubt. She sustained injuries to her hand, which was in a cast for eleven weeks; also injuries to her back which required a body cast for two months and a brace for five months. She was in the hospital for fifty-four days and could not walk for a month after she was discharged. For treatment and hospitalization, she incurred expenses in excess of seven hundred dollars. She was still suffering from her injuries at the time of trial — a year after the accident. The surgeon who attended her said that she would "probably have some residual disability to the lumbar spine as well as to the right wrist joint region."

Judgment affirmed.

MILLARD, STEINERT, ROBINSON, JEFFERS, MALLERY, and CONNELLY, JJ., concur.