Gable v. Field , 189 Wash. 526 ( 1937 )

As stated by the majority, appellant testified that, after landing on the safety island, she waited until she heard the second traffic bell announcing a change of signal. She then looked at the traffic light, and, observing that it showed green, proceeded on her way north across the intersection. The majority state that it is not claimed that she looked to the rear for traffic on the same street. In my opinion, this latter statement is at variance with appellant's testimony. The traffic signal was almost directly southeast of appellant's position on the island. In order to see the signal, she was required to look in a direction opposite to that in which she was going. She therefore necessarily looked towards the right rear, from which direction respondent's car was approaching. More than this, appellant testified:

"I looked to my right and to my left and by looking at the signal, which you can see is back, that caused me to look back towards the Medical building."

The building referred to stands on the southeasterly corner of the intersection, exactly in the direction towards which, in my opinion, appellant was required to look for approaching traffic. Later, in response to a question as to whether or not appellant looked to see if there were any cars coming along Fifth avenue, appellant replied:

"A. From over towards the Medical Dental building, yes. I cannot say that I picked that building out. I had to when I looked to see that signal. You have to. You cannot help it. When you turn around to look at that signal it is bound to take your glance around that way. You cannot just look this way and see the signal (indicating). Q. I will ask you again, did you look down Fifth avenue to see if any cars were coming? A. I will have to say that I looked to Fifth avenue. Fifth avenue is way down here (indicating), and hits the Medical Dental building. I looked over here to where I would have to look to see if there were any cars coming, and here is Fifth avenue (indicating)."

Again, in response to a question as to whether or not appellant knew that cars would be traveling north on Fifth avenue, she testified:

"A. Why, I knew that they would be coming around with the signal there, yes. That is the reason why I turned around and looked back — looked to see if there were any coming. Q. Then you knew that cars would be traveling north on Westlake and some of them would turn and go out northerly on Fifth avenue. You knew that, didn't you? A. Why, I didn't stop to think that, but naturally a person knows that they would. I didn't stop to think anything about it, but they would naturally know that they would."

Fifth and Westlake avenues merge some distance south of the intersection and of the south line of Olive way, and appellant in her testimony referred to this fact and refused to say that she had looked down Fifth avenue, which she described as adjacent to Frederick Nelson's store and the triangle building which occupies the space between Fifth and Westlake. Appellant could not have been expected to look so far away as this for approaching traffic — cars so far away would not concern her, as by far the greater portion of such traffic would proceed north on Westlake, or east or west on Olive way, and so constitute no menace at all to one in appellant's situation; but, in my opinion, she was required to look to her right rear and note any traffic approaching in her direction through the intersection. This she repeatedly testified that she did, and for this reason it should be held that the instruction of which appellant complains, and which the majority hold erroneous, was, if erroneous, error without prejudice.

In my opinion, however, the instruction was correct. The intersection is very large, and constitutes a most difficult and unusual traffic problem. From her island, appellant was controlled by a traffic signal almost exactly back of her as she faced the direction in which she desired to proceed. She therefore had to turn around to observe the signal. An abnormal situation must often be met in a somewhat abnormal manner, and I am convinced that a pedestrian in appellant's situation, exercising reasonable caution for his own safety, and being advised as to the surrounding conditions by necessary observation and the position of the traffic signal, should be required, in the exercise of due care, to look to his right rear towards the Medical Dental building, as appellant repeatedly said she did, for the purpose of observing approaching vehicular traffic.

If appellant looked in a southeasterly direction, as she testified she did, she either saw respondent's automobile and carelessly disregarded its approach, or she did not see what was in plain sight and is herself responsible for her careless observation. If she did not look in this direction, she failed to take reasonable precautions for her own safety.

In the recent case of Hamblet v. Soderburg, ante p. 449,65 P.2d 1267, is found this very pertinent paragraph:

"Present day traffic upon our streets and highways is of such a nature that the duty of reasonable care, which rests upon all, requires, in almost any conceivable situation, a fairly efficient attempt at observation before a pedestrian steps into the path of vehicular traffic."

To be efficient, observation must be directed in the direction from which vehicular traffic may menace the safety of the pedestrian. In the case at bar, practically the only direction from which traffic could come which would endanger appellant's safety, was from her right rear. While it is conceivable that a car might come south along the west side of Westlake avenue and turn on to Fifth avenue, as a practical proposition this would never happen, as a car desiring to proceed in any such direction would turn from Westlake west on Stewart street, just north of the plot occupied by the McGraw statue. The obligation, then, rested upon her to look towards the Medical Dental building, which stood to the rear and to the right of where she was standing, to observe whether or not traffic was approaching from that direction.

The cases cited by appellant, relied upon by the majority, are not in point. The accident which gave rise to the case of Hempelv. Hall, 136 Md. 174, 110 A. 210, 9 A.L.R. 1245, took place in a right angle intersection, and is not here controlling. The facts in the case of Panitz v. Webb, 151 Md. 639, 135 A. 406, as stated in the majority opinion, clearly distinguished that case from the one at bar. I find no case which seems to me in point upon the very peculiar facts here presented.

The court properly instructed the jury upon this point, and, in my opinion, the verdict returned in respondent's favor was right, both in fact and law, and the judgment should be affirmed.

STEINERT, C.J., TOLMAN, and ROBINSON, JJ., concur with BEALS, J.