Opinion
No. 24345. Department One.
May 12, 1933.
MUNICIPAL CORPORATIONS (380) — STREETS — USE AS HIGHWAY — VIOLATION OF ORDINANCE — PARKING WITHIN INTERSECTION. A truck was shown to have stopped within a diagonal intersection, where, although the street was not marked, the crossing for pedestrians, as indicated by signs and actual use, was at right angles, putting the truck within the intersection.
SAME (380, 390) — VIOLATION OF ORDINANCE — PARKING WITHIN PROHIBITED AREA — QUESTION FOR JURY. The negligence of a truck driver in leaving his truck within an intersection, contrary to the city ordinance where it was an obstruction to the view, is for the jury, notwithstanding his evidence that he stopped only five minutes to make a delivery, where there was other evidence that the truck was there at least fifteen minutes.
Appeal from a judgment of the superior court for King county, Lindsley, J., entered October 29, 1932, dismissing an action for wrongful death, upon granting a motion for nonsuit at the close of plaintiff's case. Reversed.
Kahin Carmody and Paul Coughlin, for appellant.
Poe, Falknor, Falknor Emory, for respondents.
Mrs. Myrtle Taber, having the legal right to maintain this action, instituted it to recover damages for the accidental killing of her son, Gerald Taber, six and one-half years of age, on account of the alleged negligence of the defendants. At the trial before a jury, upon the conclusion of the evidence on behalf of the plaintiff, the court sustained defendants' motions for a nonsuit, and entered a judgment dismissing the action. The plaintiff has appealed.
The accident occurred about the middle of the afternoon, August 18, 1931, at the intersection of east Union street and Harvard avenue, in Seattle. East Union street runs east and west. Harvard avenue enters it from the north at right angles. On the corner west of Harvard avenue and north of east Union street is situated a large building, known as the Knights of Columbus Club, which has a broad front on east Union street. The commodious main entrance way to the clubhouse from east Union street is located somewhat east of the center of the front of the building. The entrance way extends from the property line of the building to the north curb of east Union street. Harvard avenue, south of east Union street, runs into east Union street in a flaring manner, not at right angles, but from a southeasterly direction, so that the east curb line of Harvard avenue south of east Union street, if extended across east Union street, would strike the north side of east Union street at a point west of the west curb line of Harvard avenue as it enters east Union street from the north.
The city authorities have not marked across the surface of east Union street any pedestrian lane on the west side of Harvard avenue, south of east Union street, but a prolongation of the curb line running northwesterly along the west side of Harvard avenue, south of east Union street, would strike the north curb of east Union street several feet west of the main entrance way to the Knights of Columbus clubhouse. Also, by actual use, pedestrians habitually and uniformly use (as is known as a matter of fact and as indicated by wire netting on the parking strip on the north side of east Union street and a traffic sign on the parking strip on the south side of east Union street) a pedestrian way at right angles across east Union street from the northerly end of the sidewalk on the west side of Harvard avenue, south of east Union street, thence north to the westerly side of the main entrance way to the Knights of Columbus clubhouse.
It thus appears that, by either plan, a point on the street, just in front of an automobile standing at the curb and a little east of the west line of the entrance way to the clubhouse, is situated within the intersection caused by Harvard avenue, south of east Union street, running into east Union street. Laws 1929, p. 455, § 1, subd. (j), Rem. Rev. Stat., § 6362-2.
The respondent Alex J. Bauer, a candymaker, using a closed delivery car, traveling west, stopped his car up against the curb at the entrance way to the clubhouse, the front of his car being a few feet east of the west line of the entrance way. Bauer claims to have gone into the clubhouse, making a usual semi-monthly call in the sale or delivery of candy. While Bauer was doing this, the small son of the appellant came running down the sidewalk on the north side of east Union street until, reaching the Bauer delivery car, he turned in front of it along the actual pedestrian way, and, just after clearing the Bauer delivery car, an automobile driven by respondent Thomas Brooks, traveling westerly and passing within about a foot or a foot and a half of the delivery truck, struck the boy and knocked him to the pavement three or four feet in front of the delivery truck, causing injuries from which he died.
[1] One of the assignments of error, as bearing upon the negligence of Bauer, presents the question whether there was sufficient proof to go to the jury that Bauer stood his truck within the intersection of east Union street and Harvard avenue as it enters the street from the southeast. The trial court sustained respondents' contention that the truck was not within the intersection. From the description of the location, just above given, we are of the opinion that the jury could not have been satisfied other than that it was within the intersection.
[2] By another assignment, it is contended the respondents are in error in their contention, which prevailed in the trial court, that the evidence was not sufficient to sustain the charge of negligence with respect to Bauer's leaving his truck upon the pedestrian crossing so as to obstruct a pedestrian's view of automobile traffic going west and approaching the crossing, and where, at the same time, it obstructed the view of drivers of automobiles proceeding west and approaching the crossing way of pedestrians going from the north to the south side of east Union street, thus constituting an obstruction to traffic. We are satisfied there was sufficient evidence to take the case to the jury upon that point.
Section 61 of the traffic ordinance of Seattle is as follows:
"For the protection of life and limb, and for the regulation of traffic, the board of public works shall have authority to establish danger zones and other methods of traffic control, and to use discs, standards, buttons, stanchions, signs, painted lines or other means to indicate such regulation, and the removal or damaging of any such disc, standard, button, stanchion, sign, painted line, or any part thereof by anyone without authority of the chief of police is hereby prohibited."
By order of the board of public works, signs bearing the notice, "No vehicles allowed on this side in this block," had been posted and maintained between the south side of the building and the north side of the street, within knowledge of Bauer. Respondents undertake to escape or avoid the effect of proof of Bauer's violation of this ordinance, as a matter to be considered by the jury, by contending that a reasonable interpretation of the ordinance did not prevent his stopping his automobile in front of the building to go in and take an order and deliver candy, and there was some testimony of an administrative officer of the city in support of that theory of the ordinance. But, whatever the meaning of the ordinance, the question is: What were the facts, and who shall decide the facts?
Bauer, an interested and adverse witness called by the appellant, alone testified with respect to the purpose of his call, and, among other things, said that, within five minutes, he had taken his order, and nothing was left to be done but to go out and get the candy, when the accident happened. On the contrary, a disinterested witness testified that, while he did not know when the Bauer car was stopped at the entrance way, a quarter of an hour or more elapsed thereafter before the boy was struck. The truthfulness and good faith of Bauer's story, as bearing upon his negligence, was supported by none other than himself, an interested witness. The jury was entitled to disbelieve his uncorroborated testimony of his purposes, activities and whole story in connection with his going into the building. Day v. Polley, 147 Wn. 419, 266 P. 169; Mattingley v. Oregon-Washington R. N. Co., 153 Wn. 514, 280 P. 46.
These facts should have been submitted to the jury, as tending to show negligence and to be considered by them in connection with the further inquiry by the jury as to whether such facts constituted the proximate cause of the death of the child.
Reversed, with directions to grant a new trial.
BEALS, C.J., HOLCOMB, and MILLARD, JJ., concur.