30 Wash. 665 | Wash. | 1903
The opinion of the court was delivered by
Respondent Carrie Gray was driving in a one-horse buggy on the streets of Spokane. Her horse became frightened and ran away, and it is alleged that when the buggy struck the rails of appellant’s street car line, which was maintained on the street, the respondent was thrown from the1 buggy and was injured, and that the
It is assigned that the court erred in giving instructions numbered 5, 6, 9, 16, and 17, and in refusing to give instruction Ho. 6 asked by appellant, and in giving it in a modified form. In answer to the alleged error in the re-' fusal of the court to grant a new trial on the ground of in
The first instruction assailed by the appellant is USTo. 5, which is as follows:
“The ordinance which has been referred to in the complaint, and which has been admitted in evidence, contains certain requirements and regulations as to the manner in which the defendant’s tracks shall be kept and maintained by it. These requirements are valid regulations imposed by the city of Spokane, and are imposed upon the defendant for the purpose of compelling the streets and highways to be kept in a safe condition for public travel, so far as the defendant’s tracks are concerned; and if any person is, without negligence on his or her part, injured on account of the negligent failure of the defendant company to comply with the terms of said ordinance in respect to the condition of its track, then such person is entitled to recover from the defendant the damage so sustained, unless you should further find from the evidence that some sufficiently efficacious method be applied to keep the streets in safe condition for public travel.”
The latter part of the instruction is criticized as being meaningless and liable to misconstruction, but we think the portion of the instruction objected to is, and would so be understood to be, a modification in appellant’s interest. The jury doubtless understood the court to mean that, notwithstanding the failure of defendant company to comply
Instruction Ho. 6 is as follows:
“The plaintiffs claim that the defendant negligently failed to comply with the terms of the ordinance which had been received in evidence in the following particulars: They claim that on May 2, 1901, at a point on Broadway which has been referred to by the witnesses, one or more of the defendant’s street car rails were in such a condition that the tops of the rails were not flush with the surface of the street, but projected above the same sufficiently high to cause an obstruction to public travel, and also claimed that there were no planks laid along the rails at said point in the manner mentioned in the ordinance or at all, and they claim that the alleged absence of planks, and the alleged projection of the rails above the surface of the street, Avas caused by the negligent failure of the defendant to maintain its track and roadbed as required by said ordinance. And I instruct you that if you believe from the evidence that said track was on May 2, 1901, in the condition claimed by the plaintiffs, and believe that such condition constituted an obstruction of public travel, and also believe that it was by reason of said alleged dangerous condition of the track that the plaintiff Carrie Gray was, without negligence on her part, thrown from her carriage as claimed by her, and received the injuries complained of, then I instruct you that the plaintiffs are entitled to recover damages from the defendant.”
It is contended that by the terms and tenor of this instruction the jury was authorized to render a verdict for respondents, as against appellant, if,' without fault on the
“If you should find from the evidence that although the defendant did not put planks along the sides of its rails as required by said ordinance, yet if you should find from the evidence that the defendant did by some other method protect its rails so that they would not endanger the traveling public, as hereinbefore stated, then you will not consider said ordinance in determining whether or not defendant was negligent in the respect mentioned.”
These two instructions, considered together, cannot possibly bear the construction placed upon them by counsel for appellant. Instruction Ho. 16, the giving of which is assigned as error, is as follows:
“It was the duty of the defendant to construct and maintain its tracks in the street in such a way as to be safe for travel thereon by means of a buggy or other vehicle drawn by the ordinary horse, having the ordinary disposition, allowing for the ordinary incidents of caprice or fright and driven by an ordinarily careful and prudent person.”
This instruction involves in some degree the same objection that is urged to instruction Ho-. 5, and it is insisted that it employs the standard of perfection, and charges the appellant with the impossible task of constructing and maintaining its tracks in such a manner as to render the
“You are instructed that the defendant is not required or compelled to construct a street railway track or tracks at the point or place of the accident, or at any other point*672 or place, so as to provide for or against run-away horses, rigs or teams; that is, it is required to construct and maintain its road in such condition only as is reasonably safe for ordinarily reasonable and prudent persons using the streets at the ordinary and usual rate of speed, and driving a reasonably safe and gentle horse, allowing for the disposition of an ordinarily safe horse, and the ordinary incidents of caprice or fright, driven by an ordinarily careful and prudent person.”
So that it would seem that the reasonable degree of safety imposed by the law was given to the jury in plain and unequivocal terms, and, conceding the contention of counsel for appellant that contradictory instructions raise a prima facie presumption of prejudicial error, we do not think the principle is applicable to the conditions under discussion. Doubtless the reason for the presumption is that the jury is confused rather than enlightened, and is as liable to follow the wrong instruction as the right one. But these instructions do not seem to be contradictory. On the contrary, the last instruction, instead of contradicting the first, made plain, definite, and certain that which was before indefinite. If modified instruction Ho. 5 had immediately followed and been a part of instruction Ho. 16, the latter part of the instruction would certainly have been understood as amplifying and making more definite the first part. It performed that office none the less effectively because it was given in a subsequent instruction. In addition to this, even if the instruction had been technically erroneous, under the circumstances of this case, and the special findings of the jury, the error would have been harmless, conceding the rule that, when error is committed, it will be held to be prejudicial unless it affirmatively appears to the contrary.
The really practical contest in this case was the alleged
The objection urged to instruction No. 9 is that it indorsed the doctrine of compensation for mental suffering
Objection was made to instruction Ho. 17 and modified instruction Ho. 5, but is not discussed in appellant’s brief. They seem to us, however, to correctly state the law applicable to the case.
We think the instructions, as a whole, were fair, and favorable to appellant; and the jury, under such instructions, having found the issuable facts against the appellant no matter what the opinion of this court might be on those questions of fact, we do not feel justified in disturbing the verdict.
The judgment will therefore be affirmed.
Reavis, G. J\, and Mount, Fullerton and Anders, JJ., concur.