Colwell v. Nygaard , 8 Wash. 2d 462 ( 1941 )

The evidence does not preponderate against the findings of the trial court. The trial court found that, when appellant was approximately eighty feet behind the five girls, the two of them who were on the right or west side of the deceased walked into the snow bank on the west side of the pathway; the two girls who were on the left or east side of the deceased walked into the snow on the east side of the pathway; that one of the girls who was immediately left of the deceased took hold of the left hand of the deceased for the purpose of pulling her to the east side of the pathway, but that immediately she let loose of the hand of the deceased; and "That the deceased was never at any time on the east side of the said pathway." There is no evidence, except the unsupported testimony of appellant, that deceased moved, or intended to move, substantially away from the middle of thepathway.

An examination of the statement of facts will disclose that the road on which this accident happened was a straight road without hills or curves close to the point of accident. There was no walk for pedestrian travel. There were no obstructions to view. There was no traffic other than appellant's automobile at the time of the accident, or prior thereto, which could be a factor in this case. It was daylight and the weather was clear. The road was twenty feet wide but, as the testimony shows on page 23 of the statement of facts, the pathway used for travel on this highway in the center of this road was not wider than one and one-half times the width of the automobile which appellant was operating; that is, the way in the middle of the highway where the cars were travelling was from nine to twelve feet in width. East of that twelve-foot strip, conceding the roadway then used for travel was twelve feet wide, was a strip of highway four feet wide which was not used because of the snow. West of the used portion (which was not more than twelve feet wide) of the highway was a strip of pavement four feet wide which was not used because it was covered with snow.

The majority, in quoting a portion of the testimony, overlooked the fact that the evidence is that, when the one witness, whose testimony is determinative and was accepted by the trial court as true, last saw deceased, the latter was approximately in themiddle of the east half of the pathway, which, it is not difficult to understand, would place deceased at least three feet west on the east half of the then used portion of the highway.

If the pavement is twenty feet wide, and four feet on the east side and four feet on the west side could not be used because of the snow and ice, one-half of the twelve-foot strip used for traffic would be six feet wide; that is, while the center of the highway would be ten feet from the east edge and ten feet from the west edge of the pavement, it should be borne in mind that the witness was talking about the twelve-foot strip used for traffic. The deceased was thirteen feet west of the east curb of the highway, or three feet west of the middle of the portion of the highway then open to traffic. In other words, the deceased was at all times in peril and her negligence never ceased from the time appellant first saw her until she was struck by appellant's automobile.

As the trial court observed, the girls upon the road were in a potential position of peril which appellant actually saw and which a reasonably prudent man would have understood. I agree with the trial court that it was appellant's duty to slow down to a safe speed or to stop to avoid colliding with the girls. The situation is not one which arose suddenly. Had appellant slowed down to a proper slow speed, the deceased would have reached a place of safety, which was only three feet west of the place where she was walking and running. The trial court did not, nor do I, believe the testimony of the defendant that the deceased turned to her left, then turned back to her right. By her own negligence the deceased was placed in a position of peril and her negligence was continuing. Appellant actually saw the peril of approaching, at the speed he was travelling, one whose back was turned to him, and he had sufficient time in which to have prevented the accident had he approached the scene at a proper cautious speed.

It would serve no good purpose to cite our many prior opinions sustaining the view of the undersigned. The error of the majority is in rejecting the findings, which are amply supported by the evidence. No good purpose would be served in citing our many previous opinions that findings will not be disturbed unless it is made clearly to appear that the evidence preponderates against such findings.

The judgment should be affirmed.