117 Wash. 672 | Wash. | 1921
This is an action to recover for personal injuries received by respondent Della Gosa as a result of being struck by appellants’ automobile. The case was tried to a jury, which rendered a verdict against appellants in the sum of $1,500, and from a judgment on the verdict they appeal.
It is first contended that the jury should have been instructed to find a verdict in favor of appellants, or, failing that, the motion for judgment notwithstanding the verdict should have been granted. This requires an examination of the evidence to determine whether it was sufficient to take the case to the jury.
The facts, either admitted or which the jury might find from the evidence submitted, are substantially as’ follows: The accident happened on Rainier avenue,
in the city of Seattle, in front of the plant of the Black Manufacturing Company. Rainier avenue at this point has a paved roadway, on each side seventeen feet in width, and in the center is an eighteen-foot unpaved strip occupied by a double line of street car tracks. It was the custom for a special street car, bound city-ward, to stop in front of the plant on the easterly track, some distance from the street intersection, to receive the employees desiring to use it at closing time in the afternoon, and on this occasion the street car was so standing when, at about 4:45 p. m., Mrs. Gosa
Mrs. Gosa, desiring to take the approaching southbound car, stepped into the street, passed behind the standing street car, and following a number of others who were so proceeding, and followed by one or more, was passing over the unpaved portion of the street containing the tracks, when she stumbled and fell, or partly fell on her hands and one knee; her hands at least extending out over and onto the westerly paved roadway. Just at this time the southbound street car, which had for several blocks been traveling at a speed of twenty miles per hour or more, had approached so close to the usual stopping place that the motorman had applied the brakes and was bringing the car to a stop, and Mrs. Hyde, driving a Dodge touring car, who had been pacing along beside the street car, drew ahead of it, and seeing an automobile parked next to the curb on her right, turned her machine to the left to avoid it. As she passed beyond the parked car, notwithstanding the narrowness of the paved roadway upon which she was traveling, she had sufficient room to turn again towards the right and avoid striking Mrs. Gosa. Mrs. Hyde saw Mrs. Gosa fall as she swerved to the left to avoid the parked car, and was then distant from her from ten to thirty feet, as estimated by various witnesses. She and her witnesses testify that she immediately applied her brake and her automobile skidded to the left on the wet and slippery pavement,
It is next contended that the trial court erred in the giving and refusal to give certain instructions dealing with the duty of the driver of the automobile when confronted with a sudden emergency. The instructions asked by appellants, no doubt, correctly state the law and should be given in a proper case, but they take no account of the possibility that here the jury might find that the emergency, if any, was created by the negligence of the driver through the operation of her
Error is assigned upon the instruction given which defines “proximate cause” as “the cause which immediately preceded and directly produces the effect, as distinguished from a remote cause.” Criticism being especially made of the words “immediately preceded.” We doubt if the jury could have placed the construction upon these words which appellants suggest, but can hardly commend the definition used, as applied to the facts in this case, and in the event of another trial it would be better to use the definition approved by this court in Hellan v. Supply Laundry Co., 94 Wash. 683, 163 Pac. 9.
Appellants complain of an instruction as to speed limits under the city ordinance, in effect, because the court did not tell the jury that the place of the accident was not within the main or thickly settled portion of the city where the twelve-mile limit applies, but was in another portion of the city where the twenty-mile limit applies. . We fail to find any evidence in the record upon this point, or any request for an instruction as to the speed limit under the ordinance at the particular place in question, and therefore cannot say that the instruction given was erroneous.
In the instruction as to the measure of damages, the trial court included mental suffering as an element to be considered in fixing the compensation, and also hospital bills. There was no allegation of mental suffering in the complaint, and no proof worthy of the name that mental suffering had resulted from the injuries. Nor was there any allegation or proof that hospital bills had been incurred. Could we determine what, if any, allowance for these items, or either of them, is
The judgment is reversed and the cause remanded for a new trial.
Parker, C. J., Fullerton, Mitchell, and Bridges, JJ., concur.