Sakshaug v. Barber , 23 Wash. 2d 628 ( 1945 )

In order to recover against respondents, it was incumbent upon appellants to show by substantial evidence that respondent driver was negligent, and that that negligence was the proximate cause of the collision in question. Peterson v. Mayham, 10 Wash. 2d 111, 116 P.2d 259.

Appellants' case is founded upon purported admissions made by respondent driver. This court is committed to the rule that admissions alone, denied by the party alleged to have made them, are not of that substantial character necessary to support an affirmative holding, and that, in such cases, the claimed admissions must be supported by corroborating facts and circumstances before a verdict may be upheld. Ludberg v.Barghoorn, 73 Wash. 476, 131 P. 1165; Jones v. Harris,122 Wash. 69, 210 P. 22; Low v. Colby, 137 Wash. 476,243 P. 18, 247 P. 475; Commercial Importing Co. v. Wear, 180 Wash. 669,41 P.2d 777; Kennett v. Federici, 200 Wash. 156,93 P.2d 333; Erickson v. Barnes, 6 Wash. 2d 251, 107 P.2d 348.

It must be conceded from the evidence that the boy acknowledged the signal given by respondent and looked back at him. In this case, it becomes necessary to ascertain the duty of the bicycle rider and respondent. In this connection, we must consider three sections of our automobile code because of the situations involved, that of passing a vehicle, and that of turning at an intersection. The duties and rules affecting the parties are imposed by Rem. Rev. Stat., Vol. 7A, §§ 6360-77, 6360-84, 6360-85 [P.P.C. §§ 295-5, 295-19, 295-21]:

"Any person driving a vehicle upon any public highway of this state and overtaking another vehicle proceeding in the same direction shall pass to the left of such overtaken vehicle:Provided, That it shall be unlawful for any person to pass any vehicle overtaken unless he shall have a clear and unobstructed view ahead for a distance sufficient for safe passing, all factors considered. Any person driving a vehicle upon any publichighway and being overtaken by any vehicle proceeding in the samedirection shall keep to the extreme right-hand side of suchpublic highway and shall not accelerate his speed until the overtaking vehicle shall have resumed a driving position and speed ahead of him. The overtaking vehicle shall drive clear of the overtaken vehicle and shall continue its overtaking speed until it has passed the overtaken vehicle and shall have resumed its driving position to the right of such public highway. No person driving any vehicle upon any public highway outside incorporated cities and towns and overtaking another vehicle proceeding in the same direction shall overtake such vehicle or drive within a distance of less than fifty (50) feet of such overtaken vehicle for such purpose without first signaling his intention to pass by use of horn or other sounding device."

"Any person driving any motor vehicle upon any public highway in this state and desiring to make a turn to the right shall seasonably and prudently drive such vehicle as close as is practicable to the extreme right-hand edge of said roadway a reasonable distance before the point of making such turn. Anyperson driving any vehicle upon any public highway of this stateand desiring to make a left-hand turn at any intersection shallseasonably and prudently drive such vehicle to the extremeleft-hand side of that portion of the roadway lying to the rightof the center of such public highway a reasonable distance beforemaking such left-hand turn. It shall be unlawful for any personto make or attempt to make any right-hand or left-hand turn untilhe shall have attained the proper relative driving position asaforesaid."

"It shall be the duty of every person operating a vehicle upon any public highway and intending to turn from a standstill or while in motion intending to turn or stop, to give a timely signal from the left-hand side of such vehicle indicating the direction in which he intends to turn or that he intends to stop, as follows: If he intends to turn to the left he shall extendhis arm in a horizontal position from the left side of suchvehicle continuously for a reasonable length of time; if he intends to turn to the right he shall extend his arm from the left side of the vehicle with his forearm raised vertically continuously for a reasonable length of time; if he intends to stop he shall extend his arm from the left side of such vehicle with his forearm lowered vertically continuously for a reasonable length of time. For the purpose of this section, a reasonable length of time shall be that time required to traverse a distance in feet equal to five times the maximum speed in miles per hour allowed by law during the approach to the point of turning or stopping." (Italics supplied.)

It will be noted that the first section above cited required the driver of the automobile to drive clear of the overtaken vehicle. That is just what Barber attempted to do. He even drove over onto his left side of the center of the road in order to keep clear of the bicycle and its rider. Under that section of the statute, it was the duty of the bicycle rider to keep to the extreme right-hand side of the highway until respondent had passed. The boy did not obey that injunction of the statute. He did not keep to his right side of the road, but moved over to the left-hand side of his portion of the highway, and, in so doing, was guilty of contributory negligence as a matter of law. It was so alleged in defendants' answer.

The majority announces the rule that a signal to make a left-hand turn gives the maker of it the right of way. Does it? A study of the statute does not indicate that that is the rule, and none of our opinions so holds.

The provisions of the two statutes last quoted do not give theright of way to the operator of a vehicle about to turn left at an intersection. In any event, this could not be true until a strict compliance of the statute was observed by the person who desired to turn. A reading of the sections indicates the truth of this statement.

The case of Peterson v. Mayham, supra, had under consideration an accident which occurred at an intersection in which a driver of an automobile attempted to turn to his left and was run into by a following car. In passing upon the issues presented, we quoted the provisions of the statute relative to left-hand turns and stated:

"Where a statute (Rem. Rev. Stat., Vol. 7A, §§ 6360-84, 6360-85) requires that a motorist turning to the left at any intersection shall seasonably and prudently drive such vehicle to the extreme left-hand side of that portion of the roadway lying to the right of the center of such public highway a reasonable distance before making such a left-hand turn, a motorist, proceeding in the same direction as the one who desires to make a left-hand or `U' turn, is entitled to assume that the driver engaged in making the left-hand or `U' turn will govern his conduct by the provision in question."

The rule announced by the majority repeals the statute just quoted in the Peterson case. The rule will necessarily change our method of driving in this state, especially in the crowded city streets. From this time on, he who is on the extreme right of a street may stop all traffic on his left by giving a signal indicating a left turn.

If we assume for the moment that an operator of a vehicle obtains the right of way by giving the signal for a left-hand turn without complying with the other mandatory provisions of the statute, which I have italicized, it must certainly appear that a proper signal was not given, for the reason that the evidence concerning the admission made by respondent does not indicate that holding out his hand proved that he held it out in a horizontal manner; in other words, there is no evidence, direct or circumstantial, that the boy gave the proper signal.

The majority calls attention to the rule which holds that a child is not held to the same degree of care as an adult. This rule was adopted by this court in Lee v. Independent Dairy,127 Wash. 622, 221 P. 309, by the approval of an instruction which reads:

"`That a child in the public street is not a trespasser. His right there is as sacred as his adult neighbor or the owner of the automobile. True, he is charged with the duty of exercising such care for his safety as a child of his years, experience and capacity may fairly be presumed to possess, but the driver of a vehicle of any kind is no less bound to anticipate the presence of children upon the public highway, and to exercise reasonable diligence to avoid injuring them. In so doing, he is not justified in assuming that a young child will manifest the judgment and prudence of an experienced man, and must govern his own conduct with some reasonable degree of respect of that fact.'"

The child killed by the driver of the truck belonging to defendant, Independent Dairy, was of the age of three years. The above rule then has no application here, for the reason that the boy was well acquainted with the rules of the road. The evidence shows that he was twelve years of age, a student in junior high school, and knew, as stated by the majority, all the rules and "had lots of experience riding a bicycle."

The bare fact that an injury has been caused cannot of itself justify by inference that the injury was caused by respondent.Mahlum v. Seattle School Dist., 21 Wash. 2d 89,149 P.2d 918.

The evidence quoted by the majority does not indicate that the rider of the bicycle complied with either rule, that relating to overtaking vehicles or that relating to left-hand turns at intersections. If it be admitted that the boy gave a signal, indicating a turn to the left, he would not have been justified in making the turn until he had complied with the provisions of § 6360-85. The signal to turn, if given by the boy, was not timely because he had not complied with the provisions of the statute.

The majority speaks of the boy's "known destination." How, may I ask, can that fact be charged to respondent who had no knowledge that the boy was going to play a game of basketball to the left of the road upon which he was traveling?

The majority opinion lays stress upon the fact that the windshield was broken. To my mind this does not indicate other than that the boy ran into the side of the car. In so doing, he would naturally injure or mark some part of the side of the car and could easily have broken the windshield in so doing. Had he been run into by respondent, then the front of the car, the bumper or the front part of the fender, would have been marked or injured.

There is no more than a scintilla of evidence favorable to appellants in this case. The scintilla of evidence doctrine has been repudiated by this court. Ruff v. Fruit Delivery Co.,22 Wash. 2d 708, 157 P.2d 730.

The judgment of the trial court should be affirmed.

ROBINSON and JEFFERS, JJ., concur with SIMPSON, J.