86 Wash. 567 | Wash. | 1915
Respondents brought their action jointly against appellants, for damages for personal injuries in the sum of $4,700, upon allegations of negligence in operating an automobile owned and operated by appellants. There was a verdict for respondents for $4,000, which was reduced to $3,000 by the trial court on motion for new trial. Respondents’ recovery was based upon the presentation by them, for the consideration of the court and jury, of substantially the following facts: At about 6 o’clock p. m., on November 23,
At about the same time that respondents undertook to cross Harvard avenue as described, appellants’ automobile was being driven south along Harvard avenue between East Harrison and East Thomas streets. The automobile was in charge of one Nelson, appellants’ chauffeur, who had had seven years’ experience, and there were in it at the time, besides Nelson, Mrs. Perkins, one of appellants, her son, and three other persons. A little north of the apex of the parking strip, on the west side of Plarvard avenue, is the Roycroft apartment building. In front of this building, at the time in question, there was an automobile standing motionless. The night was very dark and it had been raining but, according to respondents’ testimony, was not raining at the time, and they did not put up their umbrella, but carried it closed.
The owner of the machine which was standing in front of the Roycroft was sitting just inside the entrance to the Roycroft, beside the front window, and heard a loud crash which caused him to think his machine had been run into by another, and he immediately went out into the street. He saw the automobile of appellants. He saw that its headlights were not lighted and that small oil side lamps were lighted
An ordinance of the city of Seattle, No. 30,906, was pleaded and introduced in evidence, which provides, among other things, that
“No person shall operate or use any automobile . upon the streets, avenues, alleys, parkways, or other public places in the city of Seattle, without having attached thereto a bell, gong, horn, or other signal device in good working order capable-of producing an abrupt sound sufficiently loud to be heard above the noise of traffic, and to serve as an adequate warning of the approach of such automobile and of the danger to any person caused thereby. No person using or operating any automobile . . . shall fail to sound such signal device as a warning when danger exists to any person in or upon any of the streets, avenues, alleys, parkways, or other public places by reason of the approach of such automobile,” etc.
There was also an ordinance, No. 30,263, pleaded and introduced in evidence, providing as follows:
“It shall be unlawful for any person to ride, drive, or propel any automobile . . . over or across any street, park, drive or other public place in the city at an excessive or unreasonable rate of speed or at such rate of speed as will endanger the life, limb, or property of pedestrians using such streets or other public places and in no event at a rate of speed greater than twenty miles an hour.”
There was also an ordinance, No. 28,563, pleaded and introduced in evidence, which provides, among other things, that automobiles, etc., operated on the streets between the hours of sunset and sunrise shall have fastened to the front thereof at least two white lights of sufficient candle power to be visible for a distance of at least one hundred feet in front of such automobile or other motor vehicle.
Respondents’ testimony showed that, when the automobile struck them, Mr. Tooker, being nearest it, tried to swing Mrs. Tooker forward and to the left in an effort to release her and get her away from the car. At the same instant, the
Much of the argument of appellants assumes that certain facts tending to show contributory negligence on the part of respondents were undisputed. Since the verdict of the jury, we must consider the facts resolved as presented by the respondents. Where there is conflict in the evidence, the facts are for the jury and, unless physically impossible or naturally improbable so that reasonable minds could not differ thereon, we are compelled to accept as conclusive all those facts which must necessarily have been resolved by the jury in respondents’ favor.
It is contended that the court erred in refusing to instruct the jury that, when the plaintiffs attempted to cross Harvard avenue near the center of the block in the nighttime, when the rain was falling, if the jury should find that the view in the direction from which the car was coming was unobstructed, and that the machine carried the ordinary side lights, and that such lights were lighted, plaintiffs themselves were guilty of such contributory negligence as would prevent a recovery. In support of this contention they cite Harder v. Matthews, 67 Wash. 487, 121 Pac. 983, and they argue that, upon the undisputed facts in the case at bar, it falls within the principle of that decision. The trouble is they are assuming that the undisputed facts in the case
“attempting to cross a busy street at a place where pedestrians were not supposed to cross. She was looking in a direction nearly opposite to the direction she was going. She walked no doubt rapidly, for she was hurrying to catch a car. She emerged from behind an express wagon into the path of vehicles, without looking for approaching vehicles. Her negligence is manifest.”
In this case we have no such manifest negligence. The respondents’ evidence shows that, before stepping off the curb into the street, they stopped and looked in all directions for approaching automobiles and could see none. The jury evidently believed in their veracity. Again, the instruction is faulty in that it instructs the jury that, if it was shown that the machine carried the ordinary side lights and such side lights were lighted, and the other circumstances existed as stated in the instruction, the plaintiffs were guilty of contributory negligence. This would leave out of view the evidence produced by respondents of a disinterested witness as to the insufficiency of the side lights, and would further leave out of view the testimony of respondents that they did not see or hear the car until about six feet away. It is true that this court has held repeatedly that a person crossing a city street must make reasonable use of his senses in order to observe impending danger. But the evidence in this case is that the respondents made reasonable use of their senses, and the j ury seemed to believe them.
Again, appellants contend that the court erred in refusing to give the jury their second requested instruction, to the effect that, if the plaintiffs in so undertaking to cross Harvard avenue at the middle of the block saw appellants’ car and assumed that it would pass down the east instead of the west driveway, where the law requires it to go, and upon such assumption stepped into collision with it, they were guilty of contributory negligence and could not recover. It
“That while thus crossing Harvard avenue, a large, forty-horsepower Packard automobile, belonging to defendants, containing the defendant Cora E. Perkins, a minor son of defendants, and other persons, and driven southerly and then suddenly diagonally easterly and suddenly in a westerly direction on said avenue, either by the chauffeur in the employ of defendants or by said minor son or by one of the other occupants of such autombile, with the consent and at the request of defendants, ran into and collided with and knocked down both of these plaintiffs; all without any fault, negligence, or carelessness on the part of the latter.”
We can see no allegation in that paragraph tending in any way to show that the respondents saw the car approaching them at any time previous to the time they testified that they saw it when it was about six to eight feet from them, coming very rapidly; and, as Mr. Tooker testified, as it came around the standing automobile in front of the Roy-croft it had veered to the east to pass around it, and he assumed that it would pass east of him instead of west; that it then suddenly veered west, and it was all so quick it may be inferred that he could not tell where it was going, but attempted to throw his wife out of its way by thrusting her to the left and forward. There is no inference to be derived from this that the respondent assumed that the automobile would be driven down the east instead of the west driveway, contrary to the law of the road, or that, acting on such assumption, he stepped into collision with it. Great stress is laid upon this detail by appellants, and it is strenuously insisted throughout their argument that respondents assumed that the car would be driven down the east driveway instead of the west driveway, contrary to the law of the road. Neither of the respondents testified that they did so assume,
“Being in imminent danger, an emergency was presented, and whether, under this emergency, the respondent acted with due prudence is, under all the authorities, a question of fact for the jury. The law does not scrutinize too carefully an act done by one who has been put in a position of danger by the one who inflicts injury upon him, leaving it for the jury to say under such circumstances whether the act in seeking to avoid the danger was the act of an ordinarily prudent man.”
See, also, Van Dyke v. Johnson, 82 Wash. 377, 144 Pac. 540.
It is insisted that, by refusing appellants’ request for this instruction, there was taken from the jury the duty of determining the contributory negligence of the respondents in falsely assuming that the car would pass where the ordinance did not permit it to pass, and that the case should therefore be reversed under the authority of Minor v. Stevens, 65 Wash. 423, 118 Pac. 313, 42 L. R. A. (N. S.) 1178. The trial court gave substantially the instructions on negligence on the part of the users of dangerous instrumentalities such as automobiles, and contributory negligence on the part of pedestrians using the streets and in crossing the streets at places other than the street intersections, as were approved in the Mmor case cited, from the observations in Hannigan v. Wright, 5 Penn. (Del.) 537, 63 Atl. 234. In the Minor case, those observations as to mutual duties of the parties
It is further contended that the trial court erred in submitting to the jury the ordinance l-especting the sounding of a horn by an automobile operator in the presence of known danger; but we think this was proper. Respondents pleaded and relied in part on the violation by appellants of the ordinance. Under the circumstances shown by appellants themselves — that their headlights had gone out some time previously, that they were driving upon a dark street without such headlights as were required by the ordinance, and that they did not give any signal or warning to persons who might be using the streets either at the crossings, or otherwise, of the movement of their automobile — all these were questions of fact to be considered by the jury in weighing and determining whether or not it was the negligence of appellants that caused the injuries. It is true the ordinance does not in terms require that a horn or signal device be sounded in the middle of a block, but it does require that such signal device be sounded as a warning where danger exists to any person in or upon the street. It was for the jury to determine whether or not the conditions of the appellants’ automobile existed as testified in behalf of respondents, and if so, whether it was negligence for the driver of the automobile not to sound his signaling device at any place in the streets. Burian v. Seattle Elec. Co., 26 Wash. 606, 67 Pac. 214; 33 Cyc. 902, 1309; 2 Elliott, Roads and Streets (3d ed.), 443; Peterson v. Seattle Elec. Co., 71 Wash. 349, 128 Pac. 650; Sullivan v. Smith, 123 Md. 546, 91 Atl. 456.
Appellants assign error in the refusal of the court to give an instruction requested by them, to the effect that, if the jury found from the evidence that, at the time the plaintiffs allege they came into collision with and were injured by defendants’ automobile, said car had the side lights burning, and that the view from the place where the plaintiffs at
“The failure to provide the fights required by this ordinance, if you find from the evidence the defendants did fail to provide them — and that is a question of fact for you to determine — would not constitute liability on the part of the defendants unless the failure to provide the fights was the proximate cause of the accident; and if you find from the evidence that the plaintiffs, as they crossed the street, had actual knowledge of the approach of the machine, whether from observation or any other kind, of fight on the machine,*580 or from any sound emitted from the machine, if you find that these plaintiffs had actual knowledge of the approach of the machine, or ought to have had such knowledge in the exercise of reasonable care on their part, in season to avoid the collision that occurred, then the negligence of the defendants, if any, you could not hold them liable for damages, and the plaintiffs could not recover.”
The court further instructed the jury:
“If you find that plaintiffs or either of them, were crossing Harvard avenue on foot at the point designated 100 to 150 feet north of the intersection of Thomas street, and further found that at the time they attempted to cross the street the night was dark, rain was falling, then I instruct you as a matter of law that plaintiffs were required to exercise a greater degree of care than if they had been attempting to cross at a street intersection, and it was their duty to exercise a great degree of care and diligence for the purpose of ascertaining whether automobiles or other vehicles were approaching; that is, to use a greater degree of diligence than if they were crossing at intersections. And if you find from the evidence that they did not exercise such a degree of care or diligence and that this was the proximate cause of the accident without which it would not have occurred, then they would be guilty of contributory negligence and cannot recover.”
It seems, therefore, that the court instructed the jury as favorably to appellants as it could, and that they were in no wise prejudiced by the refusal to give the instructions requested by appellants upon the question of contributory negligence. Michelson v. Fischer, 81 Wash. 423, 142 Pac. 1160; Segerstrom v. Lawrence, 64 Wash. 245, 116 Pac. 876; Lewis v. Seattle Taxicab Co., 72 Wash. 320, 130 Pac. 341; Chase v. Seattle Taxicab & Transfer Co., 78 Wash. 537, 139 Pac. 499; Franey v. Seattle Taxicab Co., 80 Wash. 396, 141 Pac. 890; Graham v. Allen & Nelson Mill Co., 78 Wash. 589, 139 Pac. 591; Richmond v. Tacoma R. & Power Co., 67 Wash. 444, 122 Pac. 351; Morrison v. Seattle Elec. Co., 63 Wash. 531, 115 Pac. 1076; Edwards v. Seattle, Renton
The last complaint made by appellants is that the verdict is too large. In any event, the recovery for the husband could not have been over $700 under the demand of the complaint, which, after the verdict was reduced by the court to $3,000, leaves the sum of $2,300, apparently allowed the wife. Inasmuch as she had no earning capacity, this was undoubtedly awarded to her for her pain and. suffering and permanent injuries. It certainly seems large, but it is not so excessive that we can say that the amount of the judgment is the result of passion or prejudice or any illegal influence. We do not feel, therefore, that we are justified in interfering. Hammons v. Setzer, 72 Wash. 550, 130 Pac. 1141; Kelly v. Navy Yard Route, 77 Wash. 148, 137 Pac. 444. The trial judge having interfered to the extent of reducing the verdict by $1,000, and having seen the parties and heard their testimony, and having exercised his discretion as to the amount which the respondents should recover, we will not interfere. Lynch v. Northern Pac. R. Co., 67 Wash. 113, 120 Pac. 882.
The judgment is affirmed.
Morris, C. J., Mount, Main, and Ellis, JJ., concur.