DocketNumber： 35197
Citation Numbers： 355 P.2d 776, 56 Wash. 2d 882
Judges： Ott, Weaver, Mallery, Hill, Donworth, Rosellini, Foster, Hunter, Finley
Filed Date： 10/6/1960
Status： Precedential
Modified Date： 10/19/2024
— June 23, 1958, at approximately ten o’clock a.m., George Nevitt, a twenty-six-year-old bachelor, drove his 1950 Buick Roadmaster automobile to the farm residence of his friend, Porter G. Rose, near Ridgefield, Washington, for a social visit, as he had done frequently for several years. The Rose family consisted of Porter G. Rose, his wife, Bernice, and their eight children: Lillian, Robert, Barbara, Billy, Philip, Ricky, Paul, and Rodney, aged seventeen years, fifteen, twelve, eleven, five, four, three, and fifteen months, respectively.
About two o’clock in the afternoon, Nevitt drove Robert and his friend, Clyde Thomas, to a swimming place on the river, a short distance from the Rose farm. He returned for the swimmers about four o’clock p. m. Several of the Rose children, including Rodney, accompanied him. Upon returning to the Rose farm, Nevitt stopped his automobile at the rear of the residence, approximately forty-five to sixty feet from the kitchen door. Nevitt and the children went inside the house. Rodney was carried into the house by one of the children, and was placed on the floor. Nevitt
Nevitt visited with the Rose family in the house for approximately another hour, and then decided to leave. Barbara accompanied him to his automobile. Nevitt saw the boys playing softball on the lawn and, as he looked at his automobile, he did not see any children near it. No one saw Rodney outside the house. Nevitt entered his automobile and started the motor. Barbara leaned against the car on the driver’s side and talked with him through the open window for about ten minutes. Billy joined them in the conversation. Philip, Ricky, and Paul continued to play ball on the lawn within view of Nevitt’s automobile. Robert and his friend, Clyde Thomas, were inside the house drinking coffee. Lillian was sitting on the front porch, within view of Nevitt’s automobile.
When Nevitt started to leave and had backed the Buick approximately five feet, Barbara screamed that he had run over Rodney. Rodney was then lying under the car, on the driver’s side, approximately halfway between the front and rear wheels. Barbara picked him up. Nevitt took the baby from Barbara, rushed him into the Rose home, and then to the hospital. Rodney died as a direct result of the injuries.
Porter G. and Bernice L. Rose commenced this action against Nevitt to recover damages for the wrongful death of théir son. The cause was tried to the court and a jury. The court granted defendant’s motion for nonsuit at the close of the plaintiffs’ case, ruling that, as a matter of law, the defendant was not negligent.
From the judgment of dismissal, plaintiffs appeal.
Appellants’ sole assignment of error is directed to the court’s granting of the defendant’s motion for nonsuit.
In deciding this issue, the test to be applied is whether there is any evidence or reasonable inference from the evidence that the respondent was negligent. Bidlake v. Youell, Inc., 51 Wn. (2d) 59, 315 P. (2d) 644 (1957); Pearsall v. Paltas, 48 Wn. (2d) 78, 291 P. (2d) 414 (1955).
Could Nevitt reasonably have foreseen that backing his automobile involved a risk of injury to Rodney?
LaMoreaux v. Fosket, 45 Wn. (2d) 249, 273 P. (2d) 795 (1954), is similar to the instant case. In the cited case, the defendant called at the home of Jess Neeley, one of his parishioners. He parked his automobile in front of the house and walked around to the side where the Neeleys’ daughter, Mrs. LaMoreaux, was hanging clothing on a clothesline. Mrs. LaMoreaux’s daughter, Christie Lou, eleven months old, was playing near her mother in the yard. The defendant talked with Mrs. LaMoreaux for about ten minutes and then returned to his automobile. As he was backing his automobile, he ran over Christie Lou. The LaMoreauxs brought an action to recover for the injuries to their daughter. The trial court directed a verdict for the defendant at the close of all of the evidence.
We stated the applicable rules of law as follows [p. 255]:
“In order to affirm the trial court, we must hold, as a matter of law, that respondent was not negligent; or, to put it another way, that there was no evidence upon which the jury could find negligence on his part.
“The driver of an automobile is bound to exercise ordinary, reasonable, or due care towards a child in the operation of his car, taking into consideration the age, maturity, and intelligence of such child. ‘Ordinary care’ means that degree of care which a man of ordinary prudence would exercise under the particular circumstances. He is not an insurer against injuries to children from the operation of the car.
“Each case must be governed by its own peculiar facts. The test in each case is, did the defendant, realizing the*886 proclivities of children, and in particular, the age, maturity, and intelligence of the child involved, act in a reasonably prudent manner under the circumstances? 5 Am. Jur. 607, Automobiles, § 185. The generally accepted rule is:
“ ‘If a driver has reason to anticipate that a child might be near his automobile, it is his duty to see that the way is clear before starting the vehicle into motion, but, if he has no reason to anticipate the presence of children near his car, negligence cannot be predicated on the mere fact that he started his machine, injuring the child.’ 2A Blashfield, Cyclopedia of Automobile Law and Practice (Perm, ed.) 440, § 1509 ”
In holding that, under the circumstances presented, the defendant could not reasonably have anticipated the presence of the child under his automobile and that he, therefore, owed no duty to her, we stated [p. 259]:
“. . . Should he, under the circumstances surrounding this particular occasion, have been on the lookout for the child? We know now that if he had done so, the accident would not have happened. But, should he have had reason to anticipate that such a thing might happen? During the time that he was talking to Mrs. LaMoreaux, the child was playing back and forth in the area between the garage and the clothesline. She was always in the immediate vicinity of her mother. Rev. Fosket had never particularly made over her. She had never shown any particular adoration for him. Fie had no reason to believe that she would follow him. He testified: T just couldn’t feature the fact of a year old baby following me that fast and getting out to the car ... if that is what she did, and evidently she did. I didn’t have no occasion to think the baby would follow me.’ He had no actual knowledge of the child’s position at or near his car. He had no reason to anticipate that she would be there. Under the facts and surrounding circumstances, he used all of the care that could have been expected of an ordinarily reasonable and prudent person. There was no evidence of negligence on his part that could have been considered by the jury.”
In the instant case, Nevitt had last seen Rodney inside the house under the supervision and care of at least two members of his family. Lillian was seated on the front porch. Philip, Ricky, and Paul were playing ball in the yard. Barbara and Billy were standing beside the automo
In this regard, the following statement from Comer v. Travelers Ins. Co., 213 La. 176, 34 So. (2d) 511 (1948), quoted with approval in LaMoreaux v. Fosket, supra, p. 258, is apropos:
“ ‘. . . for under the circumstances, having last seen the child on the porch with his daughter, an adult of responsible age, in a place of safety, Rev. Dykes was justified in assuming, as a reasonable man, that if the child’s position was changed to a more perilous one, he would be warned by his daughter, and that since he had not been so warned it was safe for him to back up.’ ”
Respondent Nevitt knew that Rodney could crawl; he did not know that he could walk. He knew that Rodney was in the house when he left to go to his automobile. He knew the other small children were playing in the yard, and that six of Rodney’s brothers and sisters were in a position to see the area around the automobile and warn him if anyone moved into a position of danger behind his automobile.
Under these circumstances, we hold that respondent could not reasonably have anticipated that, in the interval of ten or fifteen minutes when he was talking with Barbara and Billy (during which time the motor of his automobile was running), Rodney would crawl out of the house through the back door, forty-five to sixty feet away, while Barbara and Billy, aged twelve and eleven years respectively, were standing beside respondent’s automobile, and crawl into a position of peril unnoticed.
The judgment is affirmed.