96 Wash. 231 | Wash. | 1917
— Action to-recover damages for personal injuries. Defendant Martin owned an automobile which he operated as a jitney in the city of Seattle, the car being driven by an employee. On June 6, 1915, while-plaintiff was a passenger on the car, it was proceeding east on the south
The evidence was sharply conflicting as to the speed of both cars, as to whether the collision occurred immediately at, or a short distance to the east of, the intersection, and as to which of the two cars was actually driven against the other. A review of the evidence on these questions would serve no purpose. The conflict presented made them questions for the jury under proper instructions.
Appellants urge that the court erred in refusing to give certain requested instructions. Several of these were, in substance, covered by the instructions given. In others, were so combined the sound and the unsound that they could not be properly given. One of these was as follows:
“In order that an illegal rate of speed shall be actionable it must be the proximate cause of the injury; in this case I charge you that it was not an actionable wrong for the defendant to drive at a speed exceeding the legal speed, unless such excessive speed, if there was any, was the proximate cause of the injury; it is not enough without more, that the excessive speed, if any, brought the jitney to the place of the collision at the moment of time when it took place. Before you can find a verdict against the defendants or either of them, you must further find that the driver of the jitney failed to take the care of a reasonable,. prudent man to avoid the Herald car after he saw the danger of collision.”
The first part of this request is unobjectionable and doubtless would have been given had it been proffered as a separate instruction. But when an instruction, partly good and partly bad, is offered, the court is not required to weed out and reject the bad and give the good on pain of a reversal. Ramm
“The burden of proof is upon the plaintiff in this case to show by the greater weight of the evidence that the defend-^ ant’s driver was guilty of negligence in the manner charged and that such negligence contributed to and was the proximate cause of the collision.”
Taken as a whole, these instructions gave to the jury the law of proximate cause as applied to excessive speed, as well as to every charge of negligence. But appellants complain
Another instruction offered and refused was as follows:
“If you find from a fair preponderance of the testimony that the jitney was proceeding east along the south side of Pike street, and that the Herald car was approaching from the north along Ninth avenue, the driver of the jitney had the right-of-way and it was the duty of the driver of the Herald car to keep clear of the jitney’s course, and the driver of the jitney had the right to assume that the driver of the Herald car would keep out of his way till he had notice that the driver of the Herald car would not or could not keep out of his way; till he had such notice it was not negligent for the driver of the jitney to go ahead.”
No statute is cited, nor was any city ordinance pleaded or proved, declaring this rulé as to right-of-way. But assuming this a proper statement of the law of the road, and that the refusal of the court to so instruct might be soundly urged as error if this were an action between the owners of the respective cars, it was not error in this case. Appellant Martin, as a common carrier, owed to respondent, as his passenger, the duty of exercising the highest degree of care compatible with the practical operation of the car. That duty would not be met, as a matter of law, by a mere observance of the law of the road. His negligence, if any, as between him and his passenger, is to be measured by his duty as a common carrier, not by his duty to other users of the highway.
The law in force at the time of the accident (Laws 1905, p. 295, § 10; Rem. & Bal. Code, § 5571) limited the speed of automobiles to four miles an hour over crossings or crosswalks within the limits of any city or village when any person is upon the same; and between intersections, to twelve miles per hour in thickly settled districts, and to twenty-four miles an hour outside of such districts; by an act taking effect after the accident but before • trial,' that law was repealed. Laws 1915, ch. 142, p. 397, § 35 (Rem. Code, § 5562-35). In his charge, the trial court stated the permitted speed over
“We think the criticised instruction states the law upon the subject to which it relates as it existed at the time the accident happened clearly and with accuracy, and we do not assent to the proposition that the repeal by the legislature subsequently to the happening of the accident of that portion of the section regulating the rate of speed of cars within cities had the effect of depriving the plaintiff of any rights vouchsafed to her by the statute at the time her injuries were*237 sustained. The action here is' not founded upon the statute. In other words, there was immediately vested in plaintiff, upon receiving the injuries of which she complains, the right to institute an action, independently of the statute, to recover damages for such personal injuries as she might have sustained through the negligence of the defendant. The statute prescribed the measure of care, in the matter of speed, which the defendant was required to exercise in the execution of its contract with her to transport her with safety from one point to another over its lines. While it may be correct to say that the breach of the condition thus imposed upon the defendant by the legislature in the operation of its business as a common carrier would operate as a rule of evidence, since the violation of the condition would raise the presumption of negligence, the condition was nevertheless an element entering into the contract with plaintiff as important and substantial as any other essential element involved in the care with which common carriers are charged by the law in the transportation of passengers. This condition is not therefore, as appellant contends, a mere matter of procedure or a rule of evidence which, having been abrogated after a right of action had accrued and before the trial thereof, cannot be invoked or applied in such action under the rule laid down by the authorities cited. . . .
“In the case here the plaintiff’s right of action was a vested right, founded in the breach of the contract of carriage between herself and the defendant, one of the substantial elements of the agreement upon the part of the latter being that, in order to insure the safe and comfortable carriage of plaintiff, the rate of speed of the car on which she took passage, when passing through the streets of a city, would not exceed the limit prescribed by the statute. In other words, the law regulating the business of the transportation of passengers by street railroad corporations subsisting at the time and place of the making of a contract of carriage and where such contract is to be performed, enters into and forms a part of it, as if such law was expressly referred to, or incorporated in its terms.”
In the case of Miller v. Union Mill Co., 45 Wash. 199, 88 Pac. 130, this court recognized the same principle. Miller, an employee of the mill company, had received injuries from
The further claim that the speed statute can only be invoked in favor of pedestrians is without merit. Ludwigs v. Dumas, 72 Wash. 68, 129 Pac. 903. It imposed a positive rule of conduct upon all drivers. It seems clear that it should be invocable in favor of any person who can show that its violation was the proximate cause of his injury, in the absence of contributory negligence on his part.
Respondent was permitted to testify that he was a wig-maker and conducted a large hair goods business in a store on one of the main streets of Seattle; that he employed eight assistants in his establishment; that he drew business from all over the Northwest; that his orders ran from $25 to $50 each; that, since 1912, his gross receipts had been practically uniform every year, averaging $2,500 to $2,600 a month; that once or twice a year he traveled over his territory personally soliciting orders, at which times he secured in advance the services of a man from San Francisco or Chicago to take
In his general charge, the court instructed the jury as follows:
“If you find in favor of the plaintiff, you will allow him such sum as damages as you may find from the-evidence will fairly and reasonably compensate him for injuries which he has received, whether to his person or property.”
Pursuant to that instruction, the court then submitted to the jury an interrogatory as follows:
“I have instructed you that if you find for the plaintiff you will allow him such sum as will fairly and reasonably compensate him for injuries to his person or to his property, one or both. ... If you find for the plaintiff, then you will answer this interrogatory:
“ ‘What sum, if any do you allow plaintiff on account of injuries to his property?’
*240 “Property injury means injuries to property separate from injuries to his person. Property means clothing, business, and so forth. So that if you allow the plaintiff a verdict and if that verdict includes injuries to property, loss of business or property, you will advise the court of the amount you allow him for injuries to property by answering that interrogatory on the blank line and have it signed by your foreman.”
The verdict was for $1,500, $750 of which was found for injuries to property, in answer to the interrogatory. Appellants took an exception to the above instruction, and now assign as error the rendering of any judgment for more than ;$750, and especially the rendering of any judgment against the casualty company in excess of that amount.
Appellants’ dominant contention in this connection is that this evidence was inadmissible, especially as against the casualty company, the argument being that the statute (Laws 1915, ch. 57, p. 227; Rem. Code, § 5562-37 et seq.) requiring the jitney operator to give a bond was not intended to provide protection against damages other than to the bodies of persons injured by such conveyance. We find no merit in this contention. By section 2 (Id., § 5562-38), the statute requires the bond to be given “for the faithful compliance by the principal of said bond with the provisions of this act and to pay all damages which may be sustained by any person injured by reason of any careless, negligent or unlawful act on the part of said'principal, his agents or employees.” Section 3 (Id., § 5562-39) gives a cause of action against the principal and the surety upon the bond to “every person injured . . . for all damages sustained.” This language is too plain for construction. Clearly this means 'that the same’elements of damages for which a recovery may be had against the principal enter into and form a part of the liability against the surety, the only statutory limitation being that the recovery against the surety shall bé limited to the amount of the bond.
These instructions are, however, vulnerable to two other objections. In the first place, they submitted to the jury a
In the second place, damages to business as such, especially when measured in terms of profits, which was the only measure possible under the evidence adduced, are not recoverable in an action for personal injuries, where, as here, the business involves an investment of capital, the labor of several employees, and the time and services of the wife. This point is not argued in the briefs, but since it is fundamental and controlling upon the error assigned, a proper disposition of the case forces us to an independent investigation. It is only when the investment is insignificant and merely incidental to the performance of a plaintiff’s personal service that profits may be taken as a measure of loss or considered as an element of damages in personal injury cases, and then only because they are in reality personal earnings. Weir v. Union R. Co., 188 N. Y. 416, 81 N. E. 168, 11 Ann. Cas. 43; Kronold v. New York, 186 N. Y. 40, 78 N. E. 572; Mahoney v. Boston Elev. R. Co., 221 Mass. 116, 108 N. E. 1033; Jordan v. Cedar Rapids & M. C. R. Co., 124 Iowa 177, 99 N. W. 693; Beebe v. Greene, 34 R. I. 171, 82 Atl. 796; Ehrgott v. Mayor etc. of New York, 96 N. Y. 264, 48 Am. Rep. 622. The
“Where the facts disclose such a preponderance of the business element over the personal equation, or such an admixture of the two that the question of personal earnings could not be safely or properly segregated from returns upon capital invested, the income or profits from a business should not be considered in determining the amount of the damages to which the plaintiff is entitled.”
Measured by this principle, the instructions are obviously bad. They not only permitted the jury to find a damage to the business as such when none was pleaded, but committed the fundamental error of allowing a recovery for loss of profits in a business the profits’ of which were essentially produced by the capital invested and the labor of others, in addition to respondent’s services, and were affected by the cost of materials and many other uncertain elements.
But it does not follow, as counsel contended in the court below and intimates here, that all of the evidence to which these instructions were directed was improperly admitted. Respondent’s own testimony was plainly admissible as bearing upon the quality of his services, which were lost for a month, and as tending to throw light on his earning capacity. Manifestly the services of a man who had built up and successfully managed for years a business of the magnitude of that shown in the evidence were worth much more than what it would have cost him to secure a wigmaker merely to take his place for a month in the matter of fitting wigs. The whole business, as shown by the evidence, was largely dependent upon his own exertions. It was, therefore, competent to show the character and magnitude of the business, the capital and assistance employed, and even the profits, not indeed as elements of damage, but merely as circumstances to be considered by the jury in determining the value of respondent’s loss of his own services in the business because of the injury. Heer v. Warren-Scharf Asphalt Pav. Co., 118
“In that case it was, in substance, held that where a man not working on a salary, but managing an established business, which is mainly dependent on his personal exertions, has been disabled, and sues to recover damages for the injury, it is competent to show the character and magnitude of the business, and to that end to show the capital and assistance employed in the business, also the quality and amount of the plaintiff’s services in the business before the accident, and the amount of the profits of the business, not for the reason that such profits are in any respect elements of damage, nor that their loss or impairment can be proven because they represent interest on the capital employed, the value of the good will, and perhaps other elements, iii addition to the value of the personal services of the plaintiff, but for the reason that all these elements, when known, are truly descriptive of the quality of the service of which the plaintiff was capable before his injury, and thus tend to throw light on his earning capacity.”
See, also, Ripon v. Bittel, 30 Wis. 614; Hart v. New Haven, 130 Mich. 181, 89 N. W. 677; Muskogee Elec. Traction Co. v. Eaton (Okl.), 152 Pac. 1109; El Paso Elec. R. Co. v. Murphy, 49 Tex. Civ. App. 586, 109 S. W. 489.
The question of damage to business should not have been submitted to the jury. The evidence as to the character, extent and income from the business and respondent’s part therein should have been submitted solely as an element in determining the reasonable value of the time lost by respondent, with an express caution that diminished profits were not to be used as a measure of damages in any sense.
The judgment is reversed, and the cause remanded for a new trial.
Mount, Main, and Morris, JJ., concur.