124 Wash. 192 | Wash. | 1923
— In this action for personal injuries sustained while appellant was crossing the Pacific Highway on foot on August 8, 1920, after night, a verdict .for $4,000 in his favor was set aside and judgment n. o. v. rendered for respondent by the trial court. Respondent had previously moved for nonsuit at the close of appellant’s case, and thereafter at the close of all of the testimony, the motions being at the times denied.
Respondent was the owner and driver of a stage running between Seattle and Tacoma. The complaint
Many serious and other injuries were alleged and proven by appellant.
Respondent’s answer was a general denial, together with an affirmative defense that appellant was guilty of contributory negligence. The allegations of contributory negligence in the affirmative answer were denied by reply.
The sole question for determination on this appeal is whether the testimony, giving it the most favorable interpretation for appellant that is possible, could sustain the verdict of the jury. The evidence establishes substantially the following facts:
The Pacific Highway, at the point of the accident, runs approximately north and south, and a paved highway connects with it from Auburn, which is about a mile to the east of the Pacific Highway. The Pacific Highway is paved about twenty feet wide at the point in question. On the westerly side of the Pacific Highway is a combined cigar stand, soft drink parlor, dance hall, and gasoline station, all under one roof. The intersection is well lighted at night. At about 9:30 on the evening of the accident, appellant, accompanied by two or three friends, parked his car on the
There was one witness who testified that appellant was struck by the right-hand fender of the stage, but afterwards admitted that he had testified on a prior trial, involving the same accident, that it was the left-hand fender that struck appellant. Appellant himself
These facts speak for themselves. The stage driver was negligent in not blowing his horn, or running faster at that place than conditions justified, or not doing something to avoid the accident when he saw appellant on the highway, although it is evident that the appellant saw, or should have seen, the car himself, and it is evident that the accident happened so suddenly that the driver of the stage could have done nothing more, when the accident was imminent, than he did do, and had no last clear chance to avoid the accident; nevertheless the inattention and the negligence of appellant were the contributing causes of the accident. The first dictate of caution upon his part when he stepped down from the steps of the building upon the highway was to look to his left for vehicles
Every case of this kind depends largely upon its own facts for determination, but cases where we have held that, as a matter of law, plaintiffs were guilty of contributory negligence barring their recovery upon somewhat similar facts, but involving street railway accidents, are: Fluhart v. Seattle Elec. Co., 65 Wash. 291, 118 Pac. 51; Hellieson v. Seattle Elec. Co., 56 Wash. 278, 105 Pac. 458; Herrett v. Puget Sound Tr., L. & P. Co., 103 Wash. 101, 173 Pac. 1024; Mouso v. Bellingham & Northern R. Co., 106 Wash. 299, 179
Nor does the last clear chance doctrine apply here, as asserted by appellant. As was said in the last case cited, quoting from Hartley v. Lasater, 96 Wash. 407, 165 Pac. 106.
“ ‘Last clear chance implies thought, appreciation, mental direction and the lapse of sufficient time to effectually act upon the impulse to save another from injury, or the proof of circumstances which will put the one charged to implied notice of the situation. .....A mere statement of the rule reveals its inapplicability to a case where the contributory negligence began and culminated without the lapse of appreciable time. The doctrine is not applied where the negligence is concurrent’.”
Nor, we may add, where the negligence is continuous.
Under the facts shown, the minds of reasonable men should not differ as to the contributory negligent of appellant being the cause of the accident and injury. As a matter of law, therefore, he cannot recover.
Judgment affirmed.
Main, C. J., Bridges, Mackintosh, and Mitchell, JJ., concur.