Sakshaug v. Barber

¹ Reported in 161 P.2d 536. Plaintiffs brought an action to recover damages for the loss of services and burial expenses of their son, John Sheldon Sakshaug, a minor, age twelve years, who was killed by a collision with an automobile driven by defendant William H. Barber.

A trial to a jury resulted in a verdict for plaintiffs. Thereafter defendants presented their motions for a new trial and for judgment notwithstanding the verdict. The court granted the motions and in so doing ruled that if the order relative to judgment notwithstanding the verdict should be reversed, defendants would be granted a new trial because the verdict of the jury was not supported by the weight of evidence and "substantial justice had not been done by reason of the verdict." Judgment dismissing the action was then entered. Plaintiffs have appealed to this court and assign as error the granting of the motion for judgment notwithstanding the verdict and for a new trial.

The accident happened on the Brownsville road, at its junction with a road coming from the west, but which did not continue to the east of the Brownsville road. It occurred shortly after school let out in the afternoon, while the boy was on his way to play basketball near his home. His route to join his companions in the game led down the side road to the left from the road on which he had been traveling. The side road was graveled and had a well-defined approach extending some seventy-six feet along the Brownsville road. The road upon which the parties were traveling was of hard-surfaced macadam, twenty-eight feet wide from shoulder to shoulder, with a line painted in its center. The boy was riding his bicycle in a northwesterly direction, slightly downgrade, and was followed by his dog and William Barber, who was driving his Ford V8 automobile. It was while the boy was making a left turn and the respondent was attempting to pass him that the accident occurred.

The only living witness to the accident was respondent William Barber. He was acquainted with both roads and was driving at a speed of thirty miles per hour and slowed down when he saw the boy in front of him. We quote from his testimony as follows:

"Q. How far were you back from this boy when he held out his hand? MR. McKELVY: We object to that — his assuming something. Q. Did you see the boy hold out his hand in front of you? THE COURT: That is all right. A. He didn't hold his hand out. He held it up. Q. Did you have a conversation with Mr. Sakshaug, after that? A. No, he held up his hand. Q. Where was the boy when he held up his hand, as you say? A. On the right-hand side of the road. Q. How far on the right-hand side? A. Where he belonged. Q. That can be anywhere. On the yellow line, or where, in relationship to the side of the road? A. Over to the right-hand side of the road. Q. You went past him? A. No, sir. Q. If you never passed him, how did you hit him? A. I didn't hit him. He hit me. Q. You knew there was a road turning to the left just about where you saw this boy or just before he got to that, didn't you? A. That was some 800 feet before the boy got to this road. Q. Where was the boy lying after the accident? A. In the road. Q. Where, in reference to this side road? A. Well, — Q. Just answer the question. You attempted to pass him 800 feet back? A. There was a little dog ran, — . . . Q. Now, you were trying to miss the dog, were you? A. I wasn't trying to miss him. I was waiting for him to get out of the road. Q. Didn't you know this road turned to the left at this point? A. Well, I presume I did, but its not a road very much travelled, although it is a road the farmers use to get up there. Q. It is a well-travelled road? A. I don't know — yes, I guess. Q. Well-used. Did you tell Mr. Sakshaug, some day or so after this accident that you, in effect, knew you were wrong — that if you had this to do over again, you wouldn't go by there? A. No, sir, I didn't say that. . . . Q. About how fast were you going when you slowed down? You told Counsel you slowed down because of the dog and the boy? A. Ten miles an hour when I slowed down for the dog. The dog was quite long and a few inches high — very small curly-haired dog. Q. After the dog had gone by, what did you do? A. I naturally speeded up to go by the boy. Q. Have you any idea what speed the boy was going? A. I'm no judge of speed on a bicycle. He was going down a grade — going right along. I wouldn't say his speed. I'm not sure of it. He was pedalling right along down the grade. Q. So far as bicycles go, was he going fast or slow? A. He was going a very good speed for a bicycle. Q. I wasn't just clear what part of the pavement he was travelling? A. The pavement? Q. The right edge? A. On the right-hand side of the road. I couldn't say definitely. I think he was over plenty far enough — where he belonged. Q. Did you see the bicycle when it actually colided with your car? A. No. Q. Tell us what happened when you went by the bike? A. I lost my vision of him. I couldn't see him at all. He was on the side of me. When the bicycle struck, I don't mind saying, it kinda confused me when that hit me because I didn't realize what it was for an instant, and I guess it would be confusing to anyone that had an accident of that kind. Q. What part of the automobile did the bicycle come in contact with? A. Between the running board and the fender — right where it connects on. Q. When you last saw the boy, he was travelling down the road on the right-hand side? A. Yes. Q. Do you recall whether he was going straight ahead or turning? A. Straight ahead. Q. Did he ever made any signal of his intentions of making a left turn by extending his hand to the left? A. The only signal he made was some 800 feet from me, when he held up his hand when I blowed my horn and he turned around and looked at me. Q. He turned around and looked at you. When this bicycle sped into the side of your car, did you apply the brakes or not? A. Yes."

Additional evidence furnished by another witness showed that the windshield on the right side of the car was broken, and that there was a slight dent on the right running board. There were skid marks fifteen feet in length near the scene of the accident on the left, or west, side of the highway, approximately a foot from the yellow line. Immediately after the accident, the boy was found on the center of the main road, opposite the entrance to the road coming from the west. One witness stated that Barber's car was seventy or seventy-five feet from the place where the boy was lying.

Appellant Alfred Sakshaug testified that shortly after the accident he had a meeting with Mr. Barber and that the following conversation occurred:

"What did he tell you? Just tell the jury what he told you about this accident? A. Well, I went up to see him. It was about a month afterwards. So I went up to see him and I went to talk to him. I told him that I was father to the boy that was killed and I had never seen him before in my life. I asked him if his name was Barber and he said, ``Yes.' I said, ``I wanted to talk to you about it.' And I says, ``You never came to see me and I thought I would see you and,' ``Well,' he says, ``I have been pretty busy but didn't Mr. Jenner, —' MR. WRIGHT: Just a minute. Jenner doesn't have anything to do with it. Q. Just tell about how it happened. A. He said, ``I've been pretty busy and I couldn't come to see you.' Q. Then, did you discuss what happened at the accident? A. Yes. Q. What did he say? A. He said, ``I was driving down the road and I seen the boy and he held out his hand. I didn't know what he meant and I didn't know that road was there.' Q. He said he didn't know that side road was there? A. Yes. He said, ``The next time I see a boy like that, I'm going to slow down and see what he means.' Then he told me about the dog in the middle of the road. Q. What did he say about that? A. He said, ``If it hadn't been for that dog, I might have gotten by the boy. Q. Was that in substance, what he said? A. Yes. Q. Did he say the boy held up his hand? A. Out. Q. The boy held out his hand. And he said the next time he saw a boy hold his hand out, he was going to see what he wants? A. Yes. Q. Did he say anything about the boy looking back? A. I couldn't say whether he said he looked back or not. . . ."

Barber denied the statement made by Mr. Sakshaug.

In considering this case, it is of interest to note the following evidence given by Mrs. Sakshaug relative to the knowledge her son had of the rules of the road:

"Q. How long had this boy rode a bicycle? A. Oh, quite awhile. Q. He was a good rider? A. Oh, yes. He and a couple of boys rode bicycles. He was careful and knew all the rules. Q. He knew all the rules? A. Yes, indeed. Q. And was a very good rider? A. Yes. Q. Knew all the traffic rules, the same as an adult? A. Well, when it came time for licenses and different laws, he had to be informed — he was a boy that way. He had to find out. Q. He had rode quite a bit so he had lots of experience riding a bike? A. Yes."

[1] In considering the question relative to the motion nonobstante veredicto, we have in mind the rule that no element of discretion is present, and the motion will not be granted unless the court can say as a matter of law that there is neither evidence nor reasonable inference from evidence sufficient to uphold the verdict. Further, that in passing upon such motion, the evidence must be viewed in a light most favorable to the parties against whom the motion is made, and that all material evidence favorable to the parties benefited by the verdict must be taken as true. Substantial evidence supporting the verdict compels a denial of the motion. Omeitt v.Department of Labor Industries, 21 Wash. 2d 684,152 P.2d 973.

In this case a timely signal by the boy of his intention to make a left turn would have given him the right of way, and the question of fact as to the giving of such a signal is the crux of the case. Respondent testified:

"Q. Did he ever made any signal of his intention of making a left turn by extending his hand to the left? A. The only signal he made was some 800 feet from me, when he held up his hand when I blowed my horn and he turned around and looked at me."

Thus the signal, however made, was timely. Should the signal given have reasonably put the respondent upon notice of the boy's intention to make a left turn? Some element of reasonable confusion is eliminated by recalling that respondent knew there was no road to the right down which the boy could have turned, and that therefore, if he intended to turn, it would be to the left, in which case he would have the right of way.

[2, 3] The following cases cited announce the rule that a child is not held to the same degree of care as an adult: Studerv. Southern Pac. Co., 121 Cal. 400, 53 P. 942, 66 Am. St. 39;Stockfisch v. Fox, 275 Mich. 630, 267 N.W. 754; Bosarge v.Spiess Co., 145 So. (La.App.) 21; Westman v. Bingham,230 Iowa 1298, 300 N.W. 525; Akin v. Bradley Engineering MachineryCo., 51 Wash. 658, 99 P. 1038. The exercise of the required degree of care by an adult in such a situation as is here involved, must of course take this into account. It has a bearing upon the reasonableness of passing in an intersection as if no signal to turn left had been given, where it is conceded a signal was given, and only the sufficiency of the manner of giving it is questioned. We think it was a question of fact for the jury to pass upon. [4] Respondent relies upon Jones v. Harris, 122 Wash. 69,210 P. 22; Kennett v. Federici, 200 Wash. 156,93 P.2d 333, and Erickson v. Barnes, 6 Wash. 2d 251, 107 P.2d 348, and the cases cited therein to uphold the rule that a vital issue is not sustained solely by uncorroborated testimony as to admissions which the adverse party denies having made, where there are no corroborating facts or circumstances. He contends that the appellant's sole support on the issue of the boy's signal for a left turn is the testimony of the father as to his admissions, which we have previously set out. We agree with the rule but think it is not applicable here because of respondent's own testimony touching the giving of the signal, and the corroborative circumstances as to the boy's intentions to turn left, which the jury had a right to infer from his known destination, the route to be followed, the place where the accident occurred, and where the body was found. Indeed it might well be contended that there is a prima facie case without the testimony as to the admissions, and that they are merely corroborative of it. However, in any case, they do not stand alone as the appellant's sole support on the issue, and the respondent's contention therefore cannot be sustained.

The judgment notwithstanding the verdict is reversed. However, under the authority of Bond v. Ovens, 20 Wash. 2d 354,147 P.2d 514, the order granting a new trial on the grounds given must be and accordingly is affirmed.

BLAKE and GRADY, JJ., concur.

BEALS, C.J., STEINERT, and MILLARD, JJ., concur in the result.