As I view the evidence, the course plaintiff took in crossing the street and what he did while crossing has no bearing whatever on his right to recover. When struck, he had reached his car and had tried the door with the purpose of getting in on the left side. Just prior to and at the moment of impact he was in no different position from that he would have been in had he proceeded west to the intersection, crossed the street, and proceeded east on the sidewalk to his car and then gone around it to enter by the door on the left side. Obviously, any antecedent negligence on his part could not be a proximate cause of the accident.
With respect to the circumstances under which he was struck, appellant testified:
"Q. And what did you do when you approached there? A. I was reaching for my keys and I walked to the car and I turned the handle of it and, realizing it was locked, I at the same instant turned, facing west, with intentions *Page 178 of going around — it only unlocked on the one side and that's on the right-hand side — and with the intentions of unlocking it. I can't remember anything after that. I was hit as I turned around. Q. Were you in the act — had you started to walk toward the front of the car? A. No, I don't believe I even made any more than just that — just that left turn. I can't remember of taking a step toward the car. Q. Toward the front, you mean? A. Toward the front of it, rather."
Now, upon these facts, which must be accepted as true, upon a motion for judgment non obstante, may it be said that appellant was guilty of contributory negligence as a matter of law? To so hold, it seems to me, would make it negligence per se for the driver of a car to attempt to get in or out of his car through the door on the left side when the car is properly parked at the side of a road or street. Such a holding does not accord with common sense nor with the law as laid down by this and other courts. In 2 Blashfield, Cyclopedia of Automobile Law and Practice (Perm. ed.), p. 458, § 1395, it is said:
"Thus a person standing in the street between a nearby standing automobile near the curb and approaching traffic on that side of the street cannot be said as a matter of law to be guilty of negligence in failing to observe approaching vehicles."
Ordinarily, one may stand or be upon a street or highway, if the exigencies of his situation reasonably necessitate his being there, without being chargeable with contributory negligence as a matter of law. Stephenson v. Parton, 89 Wn. 653,155 P. 147; Deitchler v. Ball, 99 Wn. 483, 170 P. 123; Gooschinv. Ladd, 177 Wn. 625, 33 P.2d 653; Hadley v. Simpson,9 Wn.2d 541, 115 P.2d 675; Smith v. Spirek, 196 Iowa 1328,195 N.W. 736; Regan v. Los Angeles Ice Cold Storage Co.,46 Cal.App. 513, 189 P. 474. Of course, one so situated must exercise care commensurate with the hazards of traffic existing at the time and place. In the Deitchler case, which, upon the facts, bears close analogy to this, the court said, p. 486:
"Appellant next argues that the respondent was guilty of contributory negligence. Respondent testified in substance *Page 179 that, while he was putting up the top to his car and fastening the straps over the front to hold the top down, and while he was right up to the car as near as he could stand, he paid no attention to what was going on about him. Naturally this would be true, because, when he was engaged in fastening the top as it should be fastened, in standing close to his car, as he says he was, he had a right to assume that no person would run into him. It was not necessary for him to pay particular attention to passersby who had plenty of room to avoid him. The respondent, no doubt, as contended by the appellant, was required to use ordinary reasonable care for his safety, and if his testimony is to be believed at all, he did so when he was standing close to his car attending to his business, and was not putting himself in the way of danger. The respondent clearly had the right to stop his car at the place he did, and he clearly had a right to occupy a portion of the paved way in attending to whatever was necessary to be done about his car; and it was the duty of persons coming up to him to so control their cars as not to injure him, especially where there was room to avoid injury, as there evidently was in this case. In the case of Stephenson v.Parton, 89 Wn. 653, 155 P. 147, quoting from 2 R.C.L. p. 1184, we said:
"`"If a person is standing in the highway, a driver must notice him and take care not to injure him, and a failure to see a pedestrian in the street may amount to negligence."'"
It may be conceded that appellant, when he turned to go around in front of his car, was a pedestrian in contemplation of Rem. Rev. Stat., Vol. 7A, § 6360-101, which provides:
"Pedestrians on any public highway where a sidewalk is provided shall proceed upon such sidewalk. Pedestrians on any public highway where no sidewalk is provided shall proceed on the extreme left-hand side of the roadway and upon meeting an oncoming vehicle shall step to their left and clear of the roadway."
But, conceding that he was guilty of negligence in violating the statute, his right of recovery is not, for that reason, necessarily defeated. To bar recovery, such negligence must be a proximate cause of the accident. 2 Blashfield, *Page 180 Cyclopedia of Automobile Law and Practice (Perm. ed.), p. 412, § 1291. Collins v. Nelson, 112 Wn. 71, 191 P. 819; Cannon v.City Electric Fixture Co., 158 Wn. 66, 290 P. 828; Briggsv. United Fruit Produce, 11 Wn.2d 466, 119 P.2d 687.
Ordinarily, the question of proximate cause is for the jury. Under the facts as shown by this record, I think the question of whether appellant's violation of the statute (assuming that he did violate it) was clearly for the jury; for, under the circumstances, the jury might have found that his violation of the statute was but a fortuitous circumstance in nowise contributing to the accident. Had he turned to go behind his car, there would have been no violation of the statute, yet he would (the jury might conclude) have been hit anyway. Believing the evidence sufficient to take the case to the jury on the question of negligence and contributory negligence, I dissent.
ROBINSON, MALLERY, and GRADY, JJ., concur with BLAKE, J.
November 24, 1943. Petition for rehearing denied. *Page 181