50 Wash. 55 | Wash. | 1908
Lead Opinion
On the 27th day of January, 1905, John R. Archibald met his death from the overturning of his wagon, while driving along a narrow grade on one of the public highways of Lincoln county. He left surviving him a widow and three minor children. On the 10th day of April, 1906, the widow commenced an action against the county in her own name and in her own right to recover damages for the death of the husband, caused by the wrongful act of the county in failing to keep the public highway in a reasonably safe condition for public travel. Issue was joined on the complaint, and on the 21st day of December, 1906, the plaintiff submitted to a voluntary nonsuit. The judgment of nonsuit awarded costs against her in the sum of $264.05. Soon after the dismissal of this action, a second action was commenced against the county for the same tort, in the name of the widow in her own right and as administratrix of the estate of her deceased husband, and in the names of the minor children by the widow as their general guardian. On the 26th day of February, 1907, the court, on motion of the defendant, entered an order staying further proceedings in the second action as to the individual claim of widow until the costs awarded against her in the former action were paid. A demurrer was thereafter interposed to the complaint of the plaintiffs other than the widow, and the demurrer was sustained. An amended complaint was then filed in behalf of the widow as administratrix of the estate of her deceased husband, omitting the names of the children and the name of the widow as guardian and in her own right. On the 9th day of April, 1907, a second order staying proceedings as to the individual claim of the widow was entered. Issue was thereupon joined on the last amended complaint, and a trial was had before a jury. At the close of the plaintiff’s case a nonsuit was granted, and from the judgment of nonsuit, this appeal is prosecuted.
Before passing to the question of negligence on the part of the county and contributory negligence on the part of the
The appellant contends that the court erred in staying proceedings as to the widow’s claim until the costs of the former action instituted by her were paid. Courts doubtless possess inherent power to make such orders as the one complained of, in the exercise of a sound judicial discretion, and this much the appellant concedes. But in this particular case, it appears from the showing made that the widow is absolutely without means; that she has three small children to support by her personal earnings; that she and the children have been ill, and are in a large measure dependent upon the charity of friends, and that for a time at least they have been inmates of the Lincoln county poor farm. Under such circumstances, if the widow has a meritorious claim against the county, we think the court abused the discretion vested in it by law, especially in view of the fact that the action must proceed in any event for the benefit of the children, and no additional costs will accrue against the county by reason of the inclusion of the widow’s claim. The stay order should therefore be vacated.
This brings us to the question of negligence on the part of the county in failing to keep the highway in repair. The
Was the deceased guilty of contributory negligence as a matter of law?
“Knowledge by a person of a defective or dangerous condition of a public highway, and the use of it notwithstanding such knowledge, are not of themselves negligence. If the necessities of a person’s business require him to use a defective or dangerous highway, he may use it, notwithstanding he knows its defects and dangers. Such knowledge only requires an increased caution and diligence to avoid injury. In other words, although a person is required to exercise only ordinary care and prudence, yet such care and prudence must be commensurate with the necessities of the case, and maintain a constant level with the dangers of the situation.
“A person, although entitled to the use of a public highway, and entitled to do so although he knows its defective character, cannot do so in the face of certain danger.
“If the judgment of an ordinarily prudent and reasonable person would teach him that danger was certain and unavoidable, he cannot insist on rushing into it, merely because the law gives him the ris^ht to use the public highway, and requires the township officers to keep it in repair.”
These instructions were approved by the court in Falls Township v. Stewart, 3 Kan. App. 403, 42 Pac. 926, and embody, in our opinion, a correct statement of the law. Sutton v. Snohomish, 11 Wash. 24, 39 Pac. 273, 48 Am. St. 847; Reed v. Spokane, 21 Wash. 218, 57 Pac. 803; Einseidler v. Whitman County, 22 Wash. 388, 60 Pac. 1122.
Applying these rules to the facts in the case at bar, it appears that the highway had been in constant use by the general public up to the very day of the accident. The deceased was returning to his home with a load of lumber. He had no choice of routes. He was compelled to pass over the highway, leave his load behind, or remain away over night. Under such circumstances, we think the negligence of the deceased, or what a reasonably careful and prudent person
It is lastly contended that there was no proof of damages. The testimony showed the age of the deceased, his life expectancy, and his earning capacity. This was ample to enable the jury to assess the damages. On consideration of the entire record, we are satisfied that the court erred in staying proceedings as to the claim of the widow and in directing a nonsuit, and for these errors the judgment is reversed and a new trial ordered.
Hadley, C. J., and Fullerton, J., concur.
Concurrence Opinion
— I concur in the result, but do not approve the instruction quoted from Falls Township w. Stewart.
Dissenting Opinion
(dissenting) — The deceased knew the danger and voluntarily took the'chances of safely passing. I think the court properly granted the nonsuit, and that the judgment should be affirmed, and I therefore dissent.
Dunbar and Crow, JJ., took no part.