98 Wash. 342 | Wash. | 1917
This is an action to recover damages for personal injuries, alleged to have been sustained in a collision between an automobile and a motorcycle in the city of Spokane. The facts necessary to an understanding of this opinion are as follows: On February 27, 1916, the defendant W. J. Ball, who was engaged in the business of selling automobiles, was demonstrating to a prospective purchaser a six-cylinder Studebaker machine. The purpose of the demonstration was to show the power of the engine in climbing a hill on high gear without increasing the momentum of the car before reaching the beginning of the incline upon which the demonstration was being given, and also without increasing the speed of the machine while in the act of ascending the hill. The complaint sets forth the negligence of the defendant in the following language:
“That on or'about the 27th day of February, A. D. 1916, said defendant W. J. Ball, at about the hour of between two*344 and tWo-thirty p. m. of said day, was demonstrating a high power automobile of Studebaker make, having with him in his automobile at said time a prospective purchaser; that said defendant ran his automobile south on Maple street in the city of Spokane, county of Spokane, state of Washington, and at or about a distance of two or three blocks north of the intersection of said Maple street and Sixth avenue said defendant negligently increased the speed of his automobile to a rate of between 25 and 35 miles per hour, and maintained said rate of speed from said time on until the automobile which he owned and was driving ran into and injured plaintiff at the intersection of said Maple street and Sixth avenue, said injuries being more particularly described hereinafter in this complaint; that at the time and place aforesaid, while plaintiff was riding on his motorcycle going east on Sixth avenue and while crossing said Maple street at the intersection, said defendant W. J. Ball came from the north on said Maple street at a great and excessive rate of speed, to wit, between 25 and 35 miles per hour, and so negligently and carelessly operated his said machine at said time and place that plaintiff was run over by the automobile being driven by said defendant; that said defendant failed to give any signal or warning whatsoever of his approach or to apply his bi’akes, and did not slacken the speed of his car until after it had passed over and beyond the said plaintiff; that said defendant at the time and place of the injury to plaintiff hereinbefore referred to was driving his automobile in a careless and negligent manner and in violation of ordinance No. C1832 of the city of Spokane, the title of said ordinance being as follows: ‘Ordinance No. C1832. An ordinance regulating the traffic of the streets of the city of Spokane, Washington,’ passed by the city council November 30, 1914; that said defendant violated §§18 and 19 thereof. Reference is hereby made to said ordinance and pleaded herein to the same extent as though set out verbatim in this complaint.”
Sections 18 and 19 of the ordinance, referred to in the complaint, are as follows:
“Sec. 18. No vehicle shall travel at a speed faster than fifteen (15) miles an hour when inside the fire limits, nor faster than twenty (20) miles an hour when outside the fire limits.
*345 “Sec. 19. No vehicle shall be operated or moved at a speed greater than is reasonable and proper, having regard for the traffic and use of the way by others, or so as to endanger the life or limb of any person.” Ordinance No. Cl 832.
Subsequently the complaint was amended by alleging the violation of § 24 of the same ordinance, which reads as follows :
“A vehicle except when passing a vehicle ahead shall habitually keep as near the right hand curb as possible.”
The street intersection at which the collision occurred is at Sixth avenue and Maple street, and is outside of the fire district of the city of Spokane. • Between Fifth avenue and Sixth avenue, Maple street is on an ascent of approximately five per cent, and between Sixth avenue and Seventh avenue runs abruptly up grade. From the alley, which intersects the block between Fifth avenue and Sixth avenue on Maple street on the west side of the street, there is practically no obstruction to the view of one riding east on Sixth avenue, nor to one approaching Sixth avenue in a southerly direction on Maple street. So that there is an unobstructed view between the buildings on Maple street at the alley and the intersection for a distance of about one hundred and forty feet. As defendant’s automobile approached Sixth avenue on Maple street, going in a southerly direction, the plaintiff with his wife was riding a motorcycle in an easterly direction on Sixth avenue toward Maple street. At the intersection of the two thoroughfares, a collision occurred between the automobile and the motorcycle, resulting in the death of Mrs. Bullís and the severe injury of the plaintiff. This action in damages was subsequently instituted by the plaintiff, the driver of the motorcycle.
After instructing the jury as to the law of the case, the trial court submitted several special interrogatories, which, with the answers returned by the jury, are as follows:
*346 “(1) At what speed was plaintiff going on the motorcycle as he- entered the intersection of Maple street with Sixth avenue? Ans. Twenty miles per hour.
“(2) Was that speed reasonable under „all the circumstances then shown to exist? Ans. Yes.
“(3) At what speed was defendant going with the automobile as he entered the intersection of Sixth avenue with Maple street? Ans. Twenty miles per hour.
“(4) Was that speed reasonable under all the circumstances then shown to exist? Ans. Yes.
“(3) Did the motorcycle skid and fall before it was struck by the automobile? Ans. Yes.
“(6) After the defendant in the automobile actually saw the plaintiff on the motorcycle, could defendant have stopped his automobile before striking plaintiff’s motorcycle? Ans. No.”
The jury returned a general verdict in favor of the plaintiff, assessing his damages in the sum of $3,000. Defendant made a motion for judgment notwithstanding the verdict, which was denied, and this appeal followed.
The jury, by its special findings, having absolved defendant from all charges of negligence growing out of his alleged violation of §§18 and 19 of the ordinance referred to in the complaint, the case presents two questions for consideration. They are, (1) can the general verdict be sustained under the doctrine of the last clear chance; (2) was defendant’s violation of § 24 of the ordinance, requiring him to drive his automobile as near the right-hand curb as possible, a sufficient foundation upon which the verdict can rest.
Under the first proposition we shall consider plaintiff’s contention that, notwithstanding the special findings of the jury, the case admits of the application of the last clear chance doctrine, and that the verdict can be soundly upheld upon that theory. We are unable to subscribe to this view, for two reasons: (a) the record under consideration shows beyond question that the accident occurred instantaneously, and, therefore, there was no last clear chance to avoid the injury open to the defendant; and (b) the jury, by its answer
“I instruct you that the law of last clear chance as applied to this case is that, where a defendant in operating an agency of danger is confronted with* a perilous situation which is brought about by the negligence of the plaintiff, but notwithstanding said negligence of the plaintiff the defendant could, by the use of reasonable.precaution have prevented said injury, then in that event the law requires him to take advantage of the last clear chance to prevent an injury, and in this connection I instruct you that, if you find from the evidence that as the defendant was journeying south on Maple street and the motorcycle driven by the plaintiff came across his path, and by the exercise of reasonable diligence and caution he could have brought his machine to a stop and avoided the injury, that the law imposed this obligation upon him to do so under the law of the last clear chance, and in the event that he did not use that precaution, then and in that event I instruct you that your verdict should be for the plaintiff.”
The special interrogatory submitted by the court covered the only portion of the last clear chance doctrine included in the instructions, and was expressly confined to the one question, viz., could the defendant have brought his machine to a stop after he actually saw the plaintiff’s dangerous situation and thus have avoided the collision. The jury answered this
This brings us to a consideration of the second question in the case: Did defendant’s failure to drive his automobile as near the west curb as possible, in compliance with § 24 of ordinance C1832 of the city of Spokane, operate as an act of negligence upon which the verdict can soundly rest. If it did, the verdict of the jury cannot be disturbed, for it is an elementary rule of law that, where the general verdict is not irreconcilably inconsistent with the special findings, it must be permitted to stand, and this phase of the case is not covered by the special findings. Assuming that § 24 of the ordinance, requiring the driver to keep his vehicle as near the right-hand curb as possible, applies to street intersections, and that the defendant, upon the occasion in question, failed to observe the ordinance in this respect and hence was guilty of negligence, it seems too plain for argument that there was absolutely no causal connection between the act of negligence growing out of the violation of the ordinance and the collision. Clearly this negligence was not the proximate cause of the injury.
Defendant’s position near the center of the street, in this as in practically every similar instance, would not only enable the plaintiff to discover his presence sooner than he could
“The ordinance requiring the driver to keep as near the right hand curb as possible is to be interpreted reasonably. It does not mean that the driver must literally hug the right hand curb, but he should keep as near as reasonably possible considering all the circumstances then existing. If the defendant was not as near the right-hand curb as reasonably possible at the time the collision occurred and this fact caused or contributed to the collision and the collision would not have happened if he had been as near the right-hand curb as reasonably possible, then the defendant would be guilty of negligence in this case and would be liable to plaintiff in damages.”
This instruction, in the abstract, embodies a fair and clear statement of the law. But the case at bar presents a rather peculiar and unique situation, viz.: A plaintiff who testifies that he saw the defendant violating the ordinance by driving near the center of the street, and who, at the same time, claims the benefit of the ordinance by saying that he thought the defendant would drive- on the right-hand side of the street as near the curb as possible. Plaintiff testified that he saw defendant about eighteen feet north of the north intersection line of the street, and that he then noticed the defendant’s position near the center of the street. Notwithstanding this, according to his own testimony, he attempted to cross the street in front of the defendant, evidently thinking that he had time in which to do so safely. Finding this impossible, he attempted to turn his motorcycle up the hill, when, as the jury found, it skidded and fell before being struck by defendant’s automobile. The question arises, how could plaintiff have expected the defendant to observe the ordinance by driving on the right-hand side of the street, when he saw
A brief review of the principal authorities cited by plaintiff’s counsel in support of the verdict upon the ground of negligence growing out of the violation of § 24 will show that, although they enunciate a correct general rule of law, the relative positions of the parties to the accident in those cases were quite different from the situation of the litigants in the case before us. Particular stress is laid upon the case of Mosso v. Stanton Co., 75 Wash. 220, 134 Pac. 941, L. R. A. 1916A 943. In that case the plaintiff, who was crossing a street with a sack of grain on his shoulder, looked for approaching vehicles as he stepped off the sidewalk. Seeing none he continued toward the opposite side of the street. When he had reached the car tracks in the middle of the street, he was struck by the defendant’s truck. The plaintiff was where he had a right to be, and the defendant’s truck, in violation of the identical ordinance here under consideration, was in the middle of the street instead of near the right-hand curb. Had the truck been driven in compliance with the ordinance, as the plaintiff, in the absence of knowledge to the contrary, had the right to assume it would be, the accident could not have occurred. In Hiscock v. Phinney, 81 Wash. 117, 142 Pac. 461, Ann. Cas. 1916E 1044, a case arising in the city of Seattle, an ordinance similar to the one under discussion was involved. There a boy riding a bicycle collided with defendant’s automobile, which was being driven in the middle of the street and not upon the right hand-side as the
With these observations in mind, let us approach the consideration of the ordinance of the city of Spokane, which was introduced in evidence, providing that vehicles going in a northerly or southerly direction shall have the right of way except where traffic officers are stationed. It is conceded that there were no traffic officers at the intersection of Sixth avenue and Maple street. Maple street, upon which defendant was driving, runs northerly and southerly, while Sixth avenue, the street upon which plaintiff was riding the motorcycle, runs easterly and westerly. The situation, therefore, of the parties was this: Defendant was driving his automobile at a lawful rate of speed across a street intersection over which he had a prior right of way. Plaintiff was driving his motorcycle upon a street running east and west over an intersection upon which he had an inferior right of way to that of the defendant. His duty, knowledge of which he is presumed to have had, was to slow down at the intersection of the streets, look for any approaching vehicle on Maple street, and to give such vehicle, should it be within a reasonable distance of the intersection, the right to cross in front of him. The jury found that plaintiff proceeded to cross the intersection at the same rate of speed as that at which defendant was approaching, viz., twenty miles per hour. Clearly here was a violation of duty on the part of the plaintiff. He knew that defendant had the right of way on Maple street and that he was only eighteen feet from the line of intersection of the streets, and yet plaintiff attempted to cross the street in front
• “If the person injured was at the time of receiving the injury doing some act in violation of a statute, or ordinance, su,ch person cannot recover if such violation contributed to the injury, the violation amounting to contributory negligence.” 29 Cyc. 525.
“If the plaintiff is acting in violation of a statute or ordinance at the time of the accident, and such violation approximately contributes to his injury, he is guilty of contributory fault, and is as much debarred from recovery as in other cases of. contributory negligence.” Shearman & Redfield, Law of Negligence (6th ed.) § 104.
; See, also, Weller v. Chicago, M. & St. P. R. Co., 120 Mo. 635, 23 S. W. 1061, 25 S. W. 532.
Plaintiff attempted to cross the intersection in front of the defendant’s automobile, notwithstanding he saw it traveling in a- southerly direction and about to enter the intersection. He found that he had made a miscalculation of speed or distancé or both, and suddenly and violently turned his motorcycle up the hill in order to avoid colliding with the defendant. In doing this his machine skidded and fell, throwing him in the path of defendant’s oncoming machine. In view of the special findings of the jury and the plaintiff’s own version of the accident, the conclusion is irresistible that the proximate cause of the collision was plaintiff’s contributory negligence. To reach a different conclusion would necessitate ignoring the special findings, which clearly' cannot be done.
: The judgment of the lower court will be reversed, and the cause remanded with direction to enter judgment in favor of the defendant.
Ellis, C. J., Chadwick, Main, and Morris, JJ., concur.