Milda Dabol v. United States

337 F.2d 163, 1964 U.S. App. LEXIS 4363

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 9, 1964
• Docket: 18935
• Status: Published

Opinions

BROWNING, Circuit Judge.

Mrs. Dabol appeals from an adverse judgment in an action under the Federal Tort Claims Act. 28 U.S.C.A. §§ 1346(b), 1402(b), 2671-2680.

The district court found that while crossing a street in a marked crosswalk not controlled by a traffic signal, Mrs. Dabol passed in front of a vehicle stopped halfway across the crosswalk in the first lane, and, without looking to determine whether traffic was approaching, walked into the side of a slow-moving Air Force vehicle in the next lane. The court concluded that “Milda Dabol was guilty of contributory negligence as a matter of fact and also as a matter of law in walking around a stationary vehicle and into the' side of the vehicle driven by Sgt. Craig in that she made no attempt to observe and see Sgt. Craig’s vehicle when under the circumstances a reasonably prudent person using ordinary care would have seen and observed the military vehicle.”

We do not understand Mrs. Dabol to challenge the district court’s findings as to the physical facts. Her argument is that under the provisions of section 46.-60.250 of the Revised Code of Washington, Sgt. Craig was negligent as a matter of law in passing a vehicle which had stopped to permit her to cross the street,¹ and her conduct could not absolve the United States from liability for her resulting injuries.

Omitting an initial provision not applicable here, R.C.W. § 46.60.250 is set out below. For ease of reference we have added paragraph numbers and italicized the particular portions of the statute upon which Mrs. Dabol relies:

“Pedestrian traffic regulations. [1] * * * Where traffic control signals are not in place or not in operation, the operator of a vehicle shall yield the right of way, slowing down or stopping, if need be, to so yield, to any pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. This provision shall not apply under the conditions stated hereinafter.

“[2] Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the operator of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.

“ [3] Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.

“[4] Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right of way to all vehicles upon the roadway.

“[5] Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk.”

The facts found by the district court brought Mrs. Dabol within the conditions described in the first portion of the initial sentence of paragraph 1 of the statute, and she was therefore given the right of way over the Air Force vehicle. This does not mean, however, that Mrs. Dabol was relieved of the duty to exercise reasonable care for her own safety. In Williams v. Brockman, 30 Wash.2d 734, 193 P.2d 863, 867 (1948), the Washington Supreme Court said:

“A pedestrian must use the right of way accorded him by statute at a recognized street crossing, with due care for his own safety. By his negligence, a pedestrian may subject himself to a ruling that he was guilty of contributory negligence as a matter of law, or he may by his conduct justify a finding by the trier of the fact that he was guilty of contributory negligence as a matter of fact. Those are questions which must be determined in each individual case as it arises.” ²

This is the majority view.³

Furthermore, unless the provisions of R.C.W. § 46.60.250 relied upon by Mrs. Dabol dictate a different result, the finding that Mrs. Dabol passed the stopped vehicle and walked into the adjacent traffic lane with no attempt to observe approaching traffic probably required a holding that she was guilty of negligence as a matter of law,⁴ at least where, as here, the court also found that Mrs. Dabol walked into the side of appellee’s slowly moving vehicle.⁵ In any event, absent a special statutory immunity, it can hardly be denied that the physical facts found by the district court were sufficient to support the court’s conclusion that Mrs. Dabol was negligent as a matter of fact.

We therefore turn to Mrs. Dabol’s contention that the case is altered by the portions of R.C.W. § 46.60.250 which we have italicized above.

As we have seen, the first sentence of paragraph 1 provides that where there are no operating traffic signals, a vehicle must yield the right of way to a pedestrian crossing in a crosswalk, but the pedestrian shall not move suddenly from a place of safety into the path of a vehicle so close that the driver cannot yield. This provision, the statute adds, “shall not apply under the conditions stated hereinafter.” Paragraph 2, immediately following, provides that when a vehicle is stopped to permit a pedestrian to cross, vehicles approaching the stopped vehicle from the rear shall not pass; this, Mrs. Dabol contends, was the present case.⁶ Mrs. Dabol’s argument is that it follows from the juxtaposition of these provisions that when a vehicle has stopped to permit a pedestrian to pass, the prohibition in paragraph 1 against a pedestrian’s moving into the path of an approaching vehicle from a place of safety “shall not apply,” and therefore no duty is imposed upon the pedestrian to observe oncoming traffic or otherwise act to protect himself. If the approaching vehicle violates its duty to stop, Mrs. Dabol argues, the pedestrian’s acts or omissions cannot affect liability.

1. The portion of R.C.W. § 46.60.250 involved here is identical with sections 88 and 89 of the Uniform Vehicle Code of 1944⁷— with a single exception. The last sentence of the first paragraph in section 88 of the Uniform Vehicle Code states that the provisions of that paragraph “shall not apply under the conditions stated in section 89(b).” Section 89(b) is identical to paragraph 4 of R.C.W. § 46.60.250. Thus, under the Uniform Vehicle Code, it is made explicitly clear that the provisions of paragraph 1 with respect to pedestrian privileges and duties in crosswalks not controlled by traffic signals are inapplicable only when the pedestrian crosses the roadway at a point at which a tunnel or overpass was available for his use. This is also true of substantially all comparable state statutes.⁸

The exclusionary clause in paragraph 1 of the comparable Minnesota statute (Minn.Stat.Ann. § 169.21(2)), like the exclusionary clause in R.C.W. § 46.60.250, is not expressly limited to the situation described in paragraph 4. Thus, the Minnesota exclusionary clause, like that in the Washington statute, if read literally would render paragraph 1 inapplicable to paragraph 2. However, the Minnesota Supreme Court has held that the literal language of the exclusionary clause is to be read as if limited to paragraph 4 in accordance with the Uniform Vehicle Act, and that it therefore does not apply to paragraph 2. Kollodge v. F. & L. Appliances, Inc., 248 Minn. 357, 80 N.W.2d 62 (1956).

2. This result seems proper, not only by analogy to the Uniform Vehicle Act, but also because the exclusionary clause of paragraph 1 can be applied with reason only to paragraph 4.

Mrs. Dabol has unjustifiably dismembered the “provision” which the exclusionary clause of paragraph 1 states “shall not apply” in the instances thereafter enumerated. The first sentence of paragraph 1, as we have seen, provides that the pedestrian shall have the right-of way when crossing in a crosswalk where there is no traffic signal, but that he is not to move suddenly into the path of an approaching vehicle. The purpose of this provision is to grant a right of way to the pedestrian in the situation described — albeit a qualified one. The exclusionary clause applies to the grant of pedestrian right of way, qualified as it is; the statutory language affords no basis for applying the exclusionary clause to the qualification alone.⁹

The reason for making the grant of pedestrian right of way in paragraph 1 inapplicable to paragraph 4 is clear. Paragraph 4 requires the pedestrian to yield the right of way when crossing on the highway, at a point where a tunnel or overhead crossing is available for his-use. If a crosswalk not controlled by a signal were also available at such a point, paragraph 1, if left applicable, would grant a right of way to a pedestrian crossing in the crosswalk. The exclusionary clause makes paragraph 1 inapplicable to paragraph 4 so that if a pedestrian chooses to use the crosswalk instead of the alternative means of crossing provided for his use (which would eliminate any possible conflict with vehicular traffic), he must yield the right of way to the vehicular traffic.

Since paragraph 1 applies only when a pedestrian is crossing in a crosswalk, the clause rendering paragraph 1 inapplicable to subsequent provisions would serve no purpose with respect to paragraphs 3 and 5, which by their express terms apply only where there is no crosswalk.

Moreover, read as appellant reads it, the exclusionary clause in paragraph 1 would produce an absurd result as to all three of these paragraphs: a pedestrian required by paragraph 3 to yield to approaching vehicles because he is crossing elsewhere than at a crosswalk would nonetheless be free to walk or run into the path of an approaching vehicle; and a pedestrian denied the right of way by paragraph 4 because a tunnel or overpass was provided for his use, and by paragraph 5 because he was crossing where there was no crosswalk at a point between intersections controlled by traffic lights, could act in the same fashion. And although a motorist is expressly given the right of way in all three situations, he could not assert as a defense the grossest failure of a pedestrian to yield that right of way.

It is clear that the exclusionary clause in paragraph 1, properly read, cannot apply to paragraph 2. If the pedestrian right of way granted by paragraph 1 did not apply in the situation described in paragraph 2, an impasse would be created ; an approaching vehicle could not pass a vehicle stopped to permit a pedestrian to cross in a crosswalk, but the pedestrian would have no right of way.

3. We may add that it seems reasonable to suppose that if the Washington-ton legislature had wished to exclude contributory negligence as a defense to the claim of a pedestrian under paragraph 2, it would have employed a more direct means of saying so than that of negating a prohibition imposed upon the pedestrian in a different set of circumstances.

4. Finally, even if the language of the statute were given the effect contended for by Mrs. Dabol, it would not wholly exclude the defense of contributory negligence, and, indeed, would not reach Mrs. Dabol’s own case. The prohibition which would be excluded is simply that the pedestrian shall not suddenly leave a place of safety and enter the path of a vehicle approaching so closely that the driver cannot yield. The maximum effect of the exclusionary clause would be to permit the pedestrian to do under conditions described in subsequent paragraphs what he was prohibited from doing in the situation described in paragraph 1. However, dashing from a place of safety into the path of an approaching vehicle is not the only conduct of a pedestrian which may constitute negligence. The Washington Supreme Court has treated the failure of a pedestrian to maintain a reasonable lookout for approaching vehicles while crossing in a crosswalk as contributory negligence, even though it did not also appear that the pedestrian had suddenly moved into a vehicle’s path from a cui*b or other place of safety.¹⁰ The trial court did not find Mrs. Dabol negligent because she suddenly left a place of safety and projected herself into the path of appellee’s vehicle, but rather because “she made no attempt to observe and see Sgt. Craig’s vehicle when under the circumstances a reasonably prudent person using ordinary care would have seen and observed the military vehicle.”

Affirmed.

1 . But see note 6.

2 . Quoting Miller v. Edwards, 25 Wash.2d 635, 644, 171 P.2d 821, 826 (1946). See also Beireis v. Leslie, 35 Wash.2d 554, 560, 214 P.2d 194, 197 (1950); Hagstrom v. Limbeck, 15 Wash.2d 399, 404, 130 P.2d 895, 898 (1942); Estill v. Berry, 193 Wash. 10, 16-19, 74 P.2d 482, 484-486 (1937); Hamblet v. Soderburg, 189 Wash. 449, 452, 65 P.2d 1267 (1937).

3 . Where, as in this case, the action is based upon defendant’s failure to satisfy the standard of conduct fixed by a criminal statute, contributory negligence is ordinarily a defense, unless the statute is “so clearly intended to protect a particular class of persons against their own inability to protect themselves, that the policy of the legislature is interpreted to mean even that such defenses are not available.” Prosser on Torts 161 (2d ed. 1955). “Child labor acts, factory acts for the protection of workmen, or railway fencing or fire statutes” (Id. at 289) fall in the latter category. See also 2 Harper and James, The Law of Torts § 22.9 (1956); Restatement, Torts § 483 (1934). But no authority has suggested that this is true of statutes regulating the rights and obligations of pedestrians and motorists. Prosser, Contributory Negligence as Defense to Violation of Statute, 32 Minn.L.Rev. 105, 114 (1948). Decisions in accord with the Washington view are collected in 2A Blashfield’s Cyclopedia of Automobile Law & Practice § 1272 at 174, § 1431.5 at 312 (1951).

4 . See, e. g., Hamblet v. Soderburg, 189 Wash. 449, 452, 65 P.2d 1267, 1269 (1937); “Where, as here, no attempt at observation is made and especially where one steps out from behind an obstructing object, the pedestrian is guilty of negligence as a matter of law.”

5 . In Ogilvie v. Hong, 175 Wash. 209, 214, 27 P.2d 141, 143 (1933), the Washington Supreme Court approved the following instructions:

“You are instructed that if you find that decedent walked into or against the side of the defendant Hong’s car, then the decedent was guilty of negligence as a matter of law * * *.

See also Williams v. Brockman, 30 Wash.2d 734, 740, 193 P.2d 863, 866 (1948); Hagstrom v. Limbeck, 15 Wash.2d 399, 404, 130 P.2d 895, 898 (1942), and Estill v. Berry, 193 Wash. 10, 20, 74 P.2d 482, 486 (1937).

6 . We proceed on the assumption that this is so, though no finding to this effect was made by the district court, and the findings which were made suggest the contrary. The district court found that the stationary vehicle had stopped in the middle of the cross-walk in a lino of traffic halted by a traffic signal at the next intersection. The Washington Supremo Court has held that the provision of R.C.W. § 46.60.250 relied upon by plaintiff does not apply unless the circumstances are such that the driver of the approaching vehicle knew or should have known that the stationary vehicle was stopped to permit a pedestrian to pass. Rettig v. Coca-Cola Bottling Co., 22 Wash.2d 572, 576, 156 P.2d 914, 917 (1945). To the same effect see Woody v. Cope, 207 Tenn. 78, 338 S.W.2d 551, 555 (1960). Under an identical statute, the Supreme Court of Minnesota held the provision inapplicable where the stationary vehicle was stopped by a traffic light. Kollodge v. F. & L. Appliances, Inc., 248 Minn. 357, 80 N.W.2d 62, 65 (1956).

We note also that in Woody v. Cope, supra, the Supreme Court of Tennessee held, as an alternate ground, that a provision identical with paragraph 2 of R.C.W. § 46.60.250 was applicable only to two-lane highways. The court said: “It would be utter folly to hold that it was the legislative intent to have all traffic stopped on a multilaned road when one vehicle stopped. We think the intent was to regulate traffic on two lane streets so that no driver would swerve out into the path of a vehicle approaching from the opposite direction.” 338 S.W.2d at 555-556. This aspect of the decision is criticized in 28 Tenn.L.Rev. 425 (1961).

In any event, we assume for purposes of the present case that the statute applied and that Sgt. Graig violated its provisions and was negligent as a matter of law.

7 . Sees. 88 and S9 of the Uniform Vehicle Code of 1944 read as follows:

“Sec. 88. Pedestrians’ right-of-ioay in erosswallcs. — (a) When traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a cross walk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to bo in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. This provision shall not apply under the conditions stated in section 89(b).

“(b) Whenever any vehicle is stopped at a marked cross walk or at any unmarked cross walk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.

“Sec. 89. Grossing at other than Gross wallcs. — (a) Every pedestrian crossing a roadway at a point other than within a marked cross walk or within an unmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway.

“(b) Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right-of way to all vehicles upon the roadway.

“(c) Between adjacent intersections at which traffic-control signals are in operation pedestrians shall not cross at any place except in a marked cross walk.”

8 . Code of Ala., tit. 36, § 58(15); Ariz. Rev.Stat. § 28-792 (1955); Ga.Oode Ann. § 68-1656 (1957); Idaho Code § 49-733 (1947); Burns Ind.Stat. § 47-2032 (1952 Replacement); LSA-Rev. Stat. § 32:212; Rev.Code of Mont. § 32-2177 (1947); Nev.Rev.Stat. § 484.-176; N.M.StatAnn. § 64-18-33 (1953) ; N.Y.Vehicle and Traffic Law, McKinney’s Consol.Laws, c. 71, § 1151; N.D.Century Code Ann. § 39-10-28; Okla.Stat.Ann., tit. 47, § 11-502; Gen.Laws of R.I. § 31-18-3 (1956); Code of Laws of S.C. § 46-433 (1962); Tenn.Code Ann. § 59-S34 (1956); Vern.Ann.Tex.Civ.Stat. art. G701d, § 77; Utah Code Ann. § 41-6-78 (1953); W.Va.Code Ann. § 1721 (368); Wyo.Stat. § 31-158 (1957). Exceptions, in addition to R.C.W. § 46.60.-250 are Minn.Stat.Ann. § 169.21(2) ; N. H.Rev.Stat. § 262-A:33 (1955).

9 . That the intent was to exclude the grant of pedestrian right of way in subsequent situations described in the statute is made expressly clear in the 1962 revision of the Uniform Vehicle Code by stating the grant and the qualification in separate paragraphs and making the exclusionary clause applicable only to the former. See. 11-502 of the Uniform Vehicle Code of 1962 reads as follows:

“Sec. 11-502 — Pedestrians’ right of way in cross walks

“(a) When traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a cross walk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.

“(b) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. i

“(c) Paragraph (a) shall not apply under the conditions stated in section 11-503(b).

“(d) Whenever any vehicle is stopped at a marked crosswalk or at any unmarked cross walk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.”

Sec. 11-503 (b) referred to in Sec. 11— 502(c), reads:

“Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right of way to aE vehicles upon the roadway.”

The provisions of the Nevada, New Mexico, North Dakota, Oklahoma, Tennessee, and Wyoming statutes are identical with those of the 1962 revision of the Uniform Vehicle Act. See note 8.

10 . James v. Ellis, 44 Wash.2d 599, 603, 269 P.2d 573, 575 (1954). The same rule is applied in other jurisdictions having similar statutes. See, e. g., Terry v. Biswell, 66 N.M. 201, 345 P.2d 217, 219 1959) [N.M.Stat.Ann. § 64-18-33 (1953)]; Green v. Tingle, 92 R.I. 393, 169 A.2d 373, 375, 908 (1961) [Gen.Laws of R.I. § 31-18-3 (1956)]; Lofland v. Jackson, 237 S.W.2d 785, 789 (Tex.Civ.App.1950) [Vern.Ann.Tex.Civ.Stat. Art. 6701d, § 77]; Callahan v. Van Galder, 3 Wis.2d 654, 89 N.W.2d 210, 213 (1958) [Wis.Stat.Ann. § 85.44(1)].