Ferguson v. City of Seattle

I dissent for the reasons (1) that the testimony seems clear, when analyzed, that Mrs. Ferguson was crossing Jackson street from north to south within the marked pedestrian lane when she was struck by appellant's bus; (2) that there is satisfactory evidence from her physician that she suffered a loss of memory as one of the results of the accident and is, therefore, entitled to the presumption of having exercised due care for her safety; and (3) that the circumstantial evidence rule has been disregarded in the majority opinion.

The testimony of Wendell Ferguson, her husband, is as follows:

"Q. Mr. Ferguson, you remember the occasion when, the morning when Mrs. Ferguson was injured? A. I do. Q. Just tell the jury what you did. Tell what happened that morning, I'll put it that way. A. I took her to work at — as usual, or part way to work. It was the usual thing. That particular morning the reason I let her off over on the triangle between Fourth and Second was because of the viaduct on Fifth Avenue connecting Fifth and Fourth Avenue was closed, and I had been in the habit of letting her off at the bus stop and making a right turn around the depot and back to Fifth Avenue and on Fourth to Dearborn, but since that was closed, I couldn't make that turn. Traffic being heavy there, I went down the center of the Street, making it necessary to take her on around to where I could get to the curb, because I couldn't let her off there and let her walk through two lanes of heavy traffic to the bus stop. I had to take her over where she could get off at the curb and walk through pedestrian zones to get back to the bus stop. Q. Just take the pointer, Mr.Ferguson, and show on the map the directions you went there andwhere you let her off. A. I stayed right on the inside lane on Fourth Avenue South and made a left turn right here and then came back over and let her off right here as soon as I could stop, and then I came back out here and made a left turn and checked with the police later, and it was legal. MR. SCHRAMM: Just a minute. Q. Just tell what you did. You haven't any right to say anything else. A. All right. I made a left turn and came back to Second and came into Fourth Avenue there. Q. When you got there did you look any direction? A. Yes. I looked back here at the traffic coming south, heavy traffic at that time. It goes out to Boeings. Q. Did you see Mrs. Ferguson? A. I did. I saw herstarting across the intersection. Q. Then what happened? A. Well, I just got a clear spot in the traffic and drove on down Fourth Avenue." (Italics mine.)

It should be borne in mind that, when Mr. Ferguson testified that he saw Mrs. Ferguson starting across the intersection, he was using a pointer and a map. Reference may be had to the plat, reproduced herewith, which was used in the trial and in the argument before this court.

The trial judge, in his memorandum decision which is a part of the statement of facts certified to this court in this appeal, used this language:

"`The husband testified that as he proceeded, he looked back and saw his wife leaving the north curb at the northeast corner to proceed across Jackson Street on the east line of Fourth Avenue South; that it was about eight o'clock at the time she left his automobile.'"

The trial judge saw and heard the witness and saw him point as he detailed the various places on the map of the intersection of Fourth avenue south and Jackson street, with particular reference to where he had last seen his wife as she was waiting to cross Jackson street. I feel that we are bound by this interpretation of the witness's testimony as set forth in the memorandum opinion of the trial court.

Mrs. Ferguson had testified that, up to the point where her memory was blacked out, she had intended to cross Fourth avenue south from the northwest corner of the intersection where she had alighted from her husband's car, and thence to cross Jackson street to the southeast corner of the intersection for the purpose of taking a bus uptown to her work. Her testimony in this connection was as follows:

"Q. Which way were you going? A. North on Fourth Avenue to Jackson. Q. Then what did he do? A. Then he turned left and let me out. Q. He turned left and let you out, in the street or on the sidewalk? A. On the sidewalk. Q. On the sidewalk. Which direction from Fourth Avenue? A. The car was facing west. Q. And then you were on which side of Fourth Avenue? A. East or — Q. East or west? A. West. Q. What were you going to do then, Mrs. Ferguson? A. I was going to catch a bus. Q. Going in which direction? A. I was going to cross Fourth Avenue, going east, and then Jackson Street, going south. Q. And you were going to get the bus where? A. Right by the depot. Q. The bus going in what direction? A. Going north. Q. In other words, to go where? A. To work. Q. At — A. Trippy Fur Company in the Roosevelt Hotel. Q. Tell the jury what happened so far as you know? A. I got out of our car. Q. Do you remember anything after that? A. No, I do not. Q. What is the next recollection you have, Mrs. Ferguson? A. The next thing I remember I was at Providence Hospital."

It had been her custom to take the bus on the southeast corner of Fourth avenue south and Jackson street for many months prior to the date of her accident. Every logical inference

[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.] from the testimony leads to the conclusion that she crossed the street within the pedestrian lines and with the green traffic lights.

Supporting evidence of this is the condition of respondent's shoes and stockings, and the medical testimony concerning the condition of her legs immediately after the accident. The heels of her shoes were freshly ground down as though they had been placed upon an emery wheel. This could only have resulted from their having been dragged over a hard-surfaced street. The stockings were torn from her limbs and hung in shreds. Her physician testified that her legs looked as though they had been sandpapered. This could only have resulted from violent dragging against and friction with the hard surface of the street. No speculation is necessary to reach this conclusion. The simplest form of practical reasoning could reach no other conclusion. I know of no rule announced in any decision of this court which states that circumstantial evidence and the logical inferences deducible therefrom do not have their proper place in the trial of personal injury suits against owners of motor transportation vehicles.

It is inexplicable to me that the majority opinion neglects to mention the application of the rule of presumption of due care in cases which result in loss of memory to the plaintiff, rather than death, and where there is no testimony concerning the action and movement of the plaintiff prior to the accident. Considerable argument was presented in the briefs of both parties, and orally, on this question. The trial judge, in his memorandum opinion, resolved the case squarely upon this one question. His exact language was:

"`If this is a proper case to apply the doctrine that the plaintiff wife was presumed to be exercising due care, then the verdict should stand; otherwise, it should not. The case has been a troublesome one for the court. A higher tribunal will undoubtedly be called upon to decide this question.

"`The court is of the opinion that this is a proper case to apply the presumption. Therefore an order may be entered herein, denying the motion for judgment n.o.v. and a new trial.'"

The majority opinion does not decide this question. I feel that it should be decided. In Tubb v. Seattle, 136 Wn. 332,239 P. 1009, we indulged the presumption of due care to a plaintiff who suffered a loss of memory, but not death, as a result of the injuries upon which her suit was based. In that case, the plaintiff had stopped to look into a shop window on Second avenue in Seattle. There was an open trap door near where she stopped, of which she was unaware. Presumably, she stepped into it. No witnesses saw her fall, but several witnesses testified to her condition and location immediately after her accident. She recovered a verdict and judgment was entered thereon. On appeal, this court said:

"It is next contended that the respondent was guilty of contributory negligence as a matter of law, but there is nothing in the record which would justify such a holding. Thepresumption is that the party injured was in the exercise ofordinary care, and this presumption is not overthrown by the merefact of injury." (Italics mine.)

Search among our own opinions fails to indicate any other case in which the presumption of due care for one's safety was indulged in favor of one who had suffered loss of memory as to the details of the accident in which he or she had been injured, but we have long been committed to the rule that the presumption of due care does obtain in death cases predicated upon alleged negligence, when no witness has observed the decedent immediately prior to the accident. The reason for this is that the deceased victim of an accident is unable to testify to his version of the facts, and no person is ever presumed to have deliberately committed suicide. The weight of authority recognizes the rule throughout the several states in the case of persons who have suffered loss of memory and are, therefore, unable to testify concerning the facts leading up to the injury.

"The rule is well established that where the loss of memory or other incapacity rendering the survivor of an accident incapable of testifying as to the accident, is shown to be attributable to such accident, it will be presumed, in the absence of evidence to the contrary, that he exercised due care." Annotation, 141 A.L.R. 873.

The same rule was recognized in McNear v. Pacific GreyhoundLines, 63 Cal.App.2d 11, 146 P.2d 34.

In Torantolla v. Kansas City Rys. Co., 226 S.W. (K.C. Mo. App., 1920) 617, the court said:

"While there is no direct evidence that plaintiff knew of the existence of the rules, the facts show that plaintiff was very badly injured, especially about the head, his skull being fractured, which has resulted in his mind being affected, materially affecting his memory and power of concentration of mind. Plaintiff was put upon the stand, but was not able to recall the facts concerning the accident. Under such circumstances we think the same presumptions should be made in his behalf, as to knowledge of rules, reliance upon them, and the presumption of the exercise of ordinary care, as in the case of a person who is killed."

See, also, Breker v. Rosema, 301 Mich. 685, 4 N.W.2d 57, 141 A.L.R. 867; Scott v. Sheedy, 39 Cal.App.2d 96,102 P.2d 575; Stotler v. Chicago A.R. Co., 200 Mo. 107,98 S.W. 509; Heaps v. Southern Pennsylvania Traction Co., 276 Pa. 551,120 A. 548.

The majority opinion stresses the point that there were no eyewitnesses to the striking down of respondent, Mrs. Ferguson, in the pedestrian lanes by appellant's bus. It should be noticed that there were no eyewitnesses who claim that Mrs. Ferguson was walking anywhere except in the pedestrian lanes. The bus driver states that, after he had crossed the pedestrian lane, he saw a hat blow across the hood of his bus and that he at no time saw Mrs. Ferguson in the pedestrian lane. Under very similar circumstances, in a wrongful death case, we applied the rule of presumption of due care. In its opinion in Richardson v. PacificPower Light Co., 11 Wn.2d 288, 118 P.2d 985, this court said:

"The question raised by appellants' exception relates to the legal effect of `evidence of disinterested witnesses;' but there was no direct evidence, from either interested or disinterested witnesses, as to Richardson's actions at and immediately preceding the time of his death. The only evidence in the record which in any way runs counter to the presumption of due care as expounded in the first paragraph of the instruction, to which no exception was taken, is found in certain testimony concerning Richardson's actions some time before the accident and as to the physical circumstances existing before and after his death. None of that testimony can be classified as direct evidence; to the contrary, it was all of a highly circumstantial character. It is well established that the presumption of due care is not overcome by circumstantial evidence of this sort. Reinhart v.Oregon-Washington R. N. Co., 174 Wn. 320, 24 P.2d 615;Smith v. Seattle, 178 Wn. 477, 35 P.2d 27; Morris v.Chicago, M., St. P. Pac. R. Co., supra. So, although appellants' exception correctly stated a general principle of law, it had no application to the evidence in this case, and the failure to charge the jury accordingly is therefore not reversible error."

Succinctly stated, therefore, we have the following facts in this case: It was the custom of Mrs. Ferguson to alight from her husband's car at the southeast corner of the intersection of Jackson street and Fourth avenue south for the purpose of taking a bus uptown to her work. On the morning of her accident, because of street repairs, it was necessary for Mr. Ferguson to drive his car in the traffic lane closest to the center of Fourth avenue south and turn left at the intersection, permitting his wife to alight on the northwest corner of the intersection. No conceivable reason is suggested anywhere in the record or in the briefs for Mrs. Ferguson doing anything other than that which she says she intended to do — cross Fourth avenue south from west to east and cross Jackson street from north to south for the purpose of taking a bus uptown to her work. Her husband testified, with a pointer and a map, that he looked back and saw her on the corner; that the traffic was heavy on Fourth avenue south going to Boeing's aircraft factory. The trial judge interprets his testimony as saying that he saw her on the northeast corner of the intersection.

Appellant's bus was on Fourth avenue south, headed south, but intending to turn to its left or east, crossing the pedestrian lane and proceeding on in an easterly direction on Jackson street.

"Whenever, at any point, traffic is controlled by traffic control signals exhibiting the words `Go,' `Caution,' or `Stop' or exhibiting different colored lights, the following words or colors only shall be used and shall indicate as follows:

"Green or the word `Go,' under which circumstances vehicles facing such signal may proceed through the section of traffic control or turn right or left unless a sign at such point indicates such turns to be prohibited. Upon such signal exhibiting green or the word `Go' vehicles shall yield the right of way to other vehicles and to pedestrians lawfully in theintersection controlled area immediately prior to the time suchsignal is exhibited and shall permit them to proceed from thecontrolled area. . . ." (Italics mine.) Rem. Rev. Stat., Vol. 7A, § 6360-98 [P.P.C. § 295-47].

Under this statute, it was the clear duty of the driver to look out for and give right of way to pedestrians crossing Jackson street in the lane which he would traverse in making a turn easterly on Jackson street. The court very clearly and properly instructed the jury in the language of the statute and a similar ordinance of the city of Seattle, and placed the duty of looking out for pedestrians between the white lines crossing Jackson street on the east side of the intersection with Fourth avenue south upon the driver of a vehicle proceeding in a southerly direction on Fourth avenue south and seeking to turn left, or east, in the intersection, on to Jackson street.

All of the facts in the record, in my opinion, presented questions for determination by the jury. It is significant that the jury resolved all of these questions in favor of respondent. I, personally, do not feel that I am in a position to question the understanding which the trial judge and the jury had opportunity to exercise in reaching their verdict and judgment.

The testimony of Mrs. Ferguson, detailing the course she intended to take across Fourth avenue south from west to east and across Jackson street from north to south to the bus stop, the testimony of her husband that he last saw her on the northeast corner of the intersection of Fourth avenue south and Jackson street as interpreted by the trial court in its memorandum decision, the rule as to presumption of the exercise of due care for her safety by Mrs. Ferguson in view of her loss of memory from the injuries sustained by her, and the circumstantial evidence rule, all, in my opinion, require affirmance of the judgment of the trial court.

MALLERY, SCHWELLENBACH, and ABEL, JJ., concur with CONNELLY, J.

April 8, 1947. Petition for rehearing denied.