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October 4, 1948


The opinion of the court was delivered by: BLACK

This is an action by the widow and administratrix of decedent to recover judgment against the United States for damages and funeral expenses as a result of accidental death. The action is brought under the retroactive provision of the Federal Tort Claims Act *fn1" approved August 2, 1946 to recover for a death in 1946 before the passage of such Act but within the retroactive period covered thereby. The fatality occurred after dark on Western Avenue, an arterial street in Seattle. Patrick B. MacHale, almost fifty-eight, was crossing Western Avenue as a pedestrian. He was struck and killed by a Jeep belonging to the United States. Such motor vehicle at the time was being driven by an enlisted man in the United States Navy, who was operating such in line of duty. Besides the driver there were four passengers in the Jeep. All four passengers were likewise in the Navy and were serving aboard the USS Biloxi, as was also the driver. Riding in the front seat with the driver was a lieutenant junior grade who outranked all the others in the Jeep.

The driver immediately following the accident and also at the trial said he did not see Patrick B. MacHale until the moment of impact. At the trial the lieutenant testified he saw the pedestrian not to exceed ten feet before the impact. At the Seattle Police Station following an investigation at the scene of the accident, the driver signed a statement that he was proceeding at a speed of 'about 25 m.p.h.,' that he did 'not see the man before the Jeep struck him,' that he thought the man 'was carried about fifteen feet on the hood of the Jeep' and that he 'stopped immediately.' The lieutenant and each of the other three passengers after the driver had signed such statement subscribed their names to the following sentence: 'We have read the above statement and believe it is a true statement of fact.'

 Two passengers from the rear seat of the Jeep as well as the driver and such lieutenant attended the trial and testified. One of such two rear seat passengers did not know the vehicle had struck anything until after the Jeep stopped and he saw the man on the pavement. The other felt or heard a thud and saw a blur against the windshield without realizing at the moment what it was. No one else witnessed the accident.

 If the accident occurred at the crosswalk for pedestrians, plaintiff was clearly entitled to recover. Government counsel conceded such. But the defense contended that Mr. MacHale was struck south of the crosswalk, that he was jaywalking, contrary to the city ordinance of Seattle, and that as a result decedent was guilty of negligence per se which proximately caused and contributed to his accidental death. According to the defendant's witnesses, all of whom were Navy men and all but one from the USS Biloxi, the decedent, after the Jeep stopped some ten or fifteen feet past him, was picked up well south of the crosswalk and near the center of the street. One witness estimated the distance to be about seventy-five feet beyond the pedestrian crossing.

 Mr. MacHale's body was carried off the street before the police arrived. When the police got there search for skidmarks was made but none were found and there was no blood visible nor other marks indicating where the man was struck or how far he was carried or the point where the Jeep stopped. Determination of such so far as essential must depend on the testimony of the men in the Jeep, taking into consideration all the other circumstances and conditions shown by the evidence in the light of the decisions of the Washington state court.

 Both plaintiff and defendant very substantially depended, among other decisions, upon the Washington supreme court decision of Morris v. Chicago, M., St. P. & Pac. R. Co., 1 Wash.2d 587, 97 P.2d 119, 127, 100 P.2d 19. In that decision the court says where

 'there is no evidence to show what the deceased did or did not do immediately preceding the accident * * * the law indulges in a conclusion which presumably is based upon human experience, that the deceased must be presumed to have used due care.'

 At this point I may say I am well satisfied from all the circumstances and the evidence as a whole that, first -- the lieutenant did not see Mr. MacHale anything like ten feet distant or not until practically the moment of impact, and second -- that he did not shout at all until after the collision.

 Since the lieutenant was the ranking occupant of the Jeep, in the front seat, with authority over the driver, and naturally subject to be called and was called to explain the accident speedily before some form of Naval tribunal, and since he testified in behalf of the seaman driver at the municipal court trial where the driver was convicted of negligent driving, it is difficult to view him as a 'disinterested witness.' But under the long-established decisions of this state, unless he was a disinterested witness even if his sketchy claim merely of seeing Mr. MacHale 'not more than ten feet away' is enough to comply with the requirement of evidence showing 'what the decedent did or did not do' the presumption of due care on decedent's part continues.

 On this point the Morris decision, supra, says:

 'This presumption (of due care on decedent's part) entirely disappears from the case upon the introduction of competent and material testimony of disinterested witnesses, as to the actions of the deceased immediately prior to and continuing up to the time of the accident,'

 It may be noted that the lieutenant merely said he saw decedent 'not more than ten feet away' and that he (the lieutenant) shouted 'look out.' Whether 'not more than ten feet' means two feet or five feet or ten was not stated by him. If he did not know how far it was it may be that reasonable minds might interpret 'not more than ten feet' as being about five feet. In any event he said nothing whatsoever as to what decedent did 'immediately prior to and continuing up to the time of the accident.'

 Even if the lieutenant were a disinterested witness and even if he had given the requisite information as to the 'actions of the deceased prior to and continuing up to the time of the accident,' nevertheless under the law of this ...

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