120 Wash. 53 | Wash. | 1922
— This action was brought by the guardian ad litem of one Leona Y. Stoddard, a minor, seeking-recovery for personal injuries. The answer to the complaint contained admissions and denials and an affirmative defense of contributory negligence, which was denied by reply. Upon the issues thus framed, the cause went to trial before the court and a jury, resulting in a verdict in favor of the plaintiff in the sum of $2,000. A motion for new trial being made and overruled, judgment was entered upon the verdict, and the defendant appeals. When the term respondent is herein used it will be understood to refer to the minor for whose benefit the action was brought.
The accident happened on the seventh day of September, 1920, at the intersection of Rucker avenue and Fifteenth street, in the city of Everett. Rucker avenue runs north and south and there is a street car track near the center thereof. Fifteenth street intersects Rucker avenue at right angles. At the time of the accident, the respondent had alighted from the street car at this intersection and, according to her testimony, was proceeding directly west across the intersection. According to the testimony of the appellant, she was proceeding in a diagonal course across the intersection. The appellant was approaching from the north in an automobile. After the respondent came from behind the car, which had moved on and from which she had alighted, and when she was a few feet west of the west
“A vehicle, except when passing a vehicle ahead, shall keep as near the right-hand curb as practicable, so as to leave the center of the street free and open for overtaking traffic.”
The court gave an instruction based upon this ordinance, which in effect told the jury that the violation of the ordinance was negligence per se, and that, if the respondent was struck by reason of the fact that the ordinance was being violated, this was negligence which would sustain a recovery, providing the respondent was not guilty of contributory negligence. It is not negligence per se to violate a traffic ordinance where a person injured is not one of the class for whose benefit the regulation was made. Bogdan v. Pappas, 95 Wash. 579, 164 Pac. 208; Rampon v. Washington Water Power Co., 94 Wash. 438, 162 Pac. 514, L. R. A. 1917C 998.
The question then is, whether the respondent, being-injured on an intersection, was one of the class for whose benefit the ordinance was made. It will be observed that the section of the ordinance quoted, after requiring that a vehicle shall keep as near the right-
Without conceding the instruction to be error, the respondent argues that, in any event, the judgment should not be reversed for this reason because the verdict and judgment was manifestly right. In support
The next question is whether the court erred in submitting to the jury the question of future pain and suffering on the part of the respondent. It is argued by the appellant that there was no evidence from which the jury would be justified in finding that she was reasonably certain to sustain any future pain and suffering. The question of permanent injury was withdrawn from the consideration of the jury. The only testimony upon the matter of pain and suffering was given by respondent to the effect that her shoulder still ached when she ironed and that her knee bothered her when she stood on her feet too much. There was no evidence supplementary to this that such trouble would continue in the future. The evidence as to the extent, duration and frequency of the pain is not sufficiently definite and certain to enable the jury to determine that there was a reasonable certainty that the respondent would sustain pain or suffering in the future. Whether this error would be sufficient to justify a reversal if it stood alone, it is not necessary here to determine, as the cause must be reversed upon the first question discussed.
Finally, it is contended that the court erred in submitting to the jury the matter of the loss of wages dur
The judgment will be reversed, and the cause re-manded with directions to the superior court to grant a new trial.
Parker, C. J., Holcomb, Hovey, and Mackintosh, JJ., concur.