Tierney v. Riggs, No. 20157. Department Two.

No. 20157. Department Two. | Wash. | Dec 31, 1926

At 7:00 o'clock on a dark December night, the appellant parked his unlighted automobile on the north side of Madison street in the city of Seattle, in violation of a city ordinance, and left it there until 8:00 o'clock the following morning. Some time between midnight and 1:00 o'clock, the plaintiff, driving his automobile westerly on Madison street, which at that point slopes sharply to the west, ran into the appellant's automobile. This action, prosecuted for the purpose of recovering the resulting damages, was tried to the court without a jury, and a judgment was entered in favor of the respondent.

Appellant's appeal is predicated upon the contention that the respondent was guilty of contributory negligence, which defeats his right of recovery. The appellant's negligence is self-evident. He parked his car in a place where, by ordinance, he was forbidden to park it; he left it without lights, and although no ordinance was introduced making it unlawful to park unlighted cars, yet his act, in the absence of such an ordinance, was negligence, as his automobile constituted an obstruction in the street; and to leave such an obstruction, unlighted, on a much frequented street and at a place where, from the evidence, it appears that the surroundings were particularly dark by reason of shade trees, was unquestionably not the act of a reasonably prudent man.

[1] The only question, therefore, is whether the respondent himself was guilty of contributory negligence. The testimony shows that respondent's car was properly equipped with lights and brakes, that he was driving it down Madison street, from the east, at a reasonable rate of speed; that, as he neared the appellant's car, there was approaching a car from the west and, in order to give that car proper passage way, he shifted from his position in the street towards the right, which resulted in the collision. The theory upon which appellant predicates his claim of contributory negligence is that the respondent should have been driving his car within the radius of his lights and that failure to do so constituted negligence. But that doctrine has been recently and finally repudiated by this court in the case ofMorehouse v. Everett, ante, p. 399, 252 P. 157" court="Wash." date_filed="1926-12-29" href="https://app.midpage.ai/document/morehouse-v-city-of-everett-3993381?utm_source=webapp" opinion_id="3993381">252 P. 157, and in that opinion prior decisions of this court, upon which appellant relies, were referred to and explained.

In the Morehouse case, we call attention to the fact that one driving a car at night is warranted in assuming that the road ahead of him is safe for travel, unless the dangers there are indicated by red lights, and that the absence of warning given by red lights amounts to an implied invitation to travel the road in the usual manner; that to restrict a driver's right by the "drive within the radius of your lights" rule would be to encourage the placing of unlighted obstructions in the streets, and the court finally, as already said, repudiated that doctrine.

The respondent's speed being reasonable, and his handling of his car being such as a reasonably prudent man would indulge in, the fact that, on a down grade, his lights did not reveal the obstruction left in the street by the appellant, did not make him guilty of contributory negligence in failing to see that object in time to avoid it.

The proximate occasion of the injury to the respondent was the unlawful parking of appellant's car and the negligent failure to light the obstruction which the appellant thus created.

The judgment is, therefore, correct and it is affirmed.

TOLMAN, C.J., PARKER, ASKREN, and BRIDGES, JJ., concur.