121 Wash. 645 | Wash. | 1922
This action was brought by the administrator of the estate of Mary Rosalia Wistaka, deceased, to recover for the wrongful death of the decedent. The action is for the benefit of the surviving husband and is authorized by ch. 123, p. 495, Laws of 1917 (Rem. Comp. Stat., § 183). The jury returned a verdict in the sum of $4,000 for plaintiff, and from a judgment entered thereon, the defendant has appealed.
The evidence shows substantially the following facts: About half past five o’clock on the afternoon of November 13, Joseph Waki stopped his team of horses, hitched to an open hack or spring wagon, next to and parallel with the curb on the north side of Sprague avenue, which runs east and west, in the city of Spokane, at a point forty feet west of the crossing of Pitts-burg street and the avenue, the team facing west, to go into a grocery store on the- south side of the avenue to purchase goods. His wife was on the seat with him, while his guests, consisting of Mary Rosalia Wistaka, still another woman, and two children, were - seated on the floor of the wag-on. On leaving the wagon to cross over to the grocery, he gave the reins to his wife. During* his absence the accident happened. It was after dark and there was a light falling of snow and rain. An arc street light was burning over the
One companion of the truck driver testified he was resting with his eyes shut and noticed nothing until the collision happened; the other said he paid no attention to the way, that he was not the driver and did not notice the wagon until it was struck; while the driver said it was dark and he could not see the wagon prior to its being hit. On the contrary, there were those traveling, some afoot and one on the bicycle, without lights, who had just passed by the wagon, not so far, however, but that they heard the collision and ,came back to the scene of it, who testified that the wagon was easily to be seen from a reasonable distance. One of them, a police officer, testified the wagon could be seen from the lighted street intersection. Indeed, he had gone east on the avenue, passing by the wagon, and had reached a point about half a block east of the street intersection at the time of the
Appellant answered the complaint by denial of any negligence on its part and affirmatively alleged, among other things, as follows: ‘ ‘ that the death of the said Mary Rosalia Wistaka, if brought about or caused by the negligent acts of anyone whomsoever, was caused by the negligent acts of said Mary Rosalia Wistaka herself, and of other persons riding in said Avagon with said Mary Rosalia Wistaka, and that the negligence on her part and on their part directly contributed to the cause of her death.”
There are many assignments of error which are discussed generally on behalf of the appellant; as, first, errors in giving and refusing instructions relative to imputed and contributory negligence; and second, excessiveness of the damages awarded.
There is no question that the driver of the team of horses and the appellant were both negligent in failing to comply with the law requiring lights in the use of vehicles. But negligence on that account, whether direct or imputed, does not necessarily bar
But to be more specific as to the appellant’s contention: The court instructed the jury that,
“any negligence on the part of Joseph Waki in equipping said spring wagon or in driving and operating the same, or his said wife whom he left in charge while said spring wagon was parked at the time of the accident, if any such appears, cannot be imputed to Mary Rosalia Wistaka, and the plaintiff is not deprived of his right of action in this case by reason of any negligence, if you find there was any, on the part of the driver of said spring wagon, while the same was parked, and in which wagon the said Mary Rosalia Wistaka was riding, if you find that she, said Mary Rosalia Wistaka, exercised ordinary care and prudence.”
It is claimed by appellant no instructions whatever should have been given upon this subject because there was no question of imputed negligence in the case. Abstractly, there seems to be no criticism of the instructions, and otherwise we think it was prudent and necessary in protection of respondent’s rights because of the affirmative answer that the death, if caused by the negligent acts of any one, was caused by the negligent acts of the decedent and of other persons with whom she was riding; and further, there was no trespass upon the rights of appellant in the instruction, because it concluded by imposing upon the decedent the standard rule of exercising ordinary care for her own safety.
Contributory negligence is of itself such that it proximately and naturally contributes to the cause of the injury, and certainly, under the evidence in this case, must be left to the jury — as it was by all the instructions that were given — and not declared to be such by
The second assignment requires less attention. The verdict and judgment were for $4,000. The services decedent had rendered for years were fully explained to the jury, concerning the value of which competent and worthy testimony variously estimated them at the reasonable value of $30 to $75 per month. The life expectancy of a woman of the age of decedent at the time she was killed is 12.313 years. The award is less than the lowest estimate and will not be disturbed. Judgment affirmed.
Parker, C. J., Tolman, Fullerton, and Bridges, JJ., concur.