126 Wash. 402 | Wash. | 1923
— The plaintiff brought this action, seeking recovery of damages for personal injuries which he sustained when struck by an automobile driven by the defendant W. O. Fonda. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $650. A motion for a new trial was made and sustained on the ground that there had been error in the instructions submitting the cause to the jury. From the order granting the new trial, the plaintiff appeals.
Since the question here to be determined is whether the instructions contained reversible error, it will only be necessary to make a brief summary of the facts.
In instruction No. 9, a number of sections of the traffic ordinance of the city of Seattle were quoted, one of which is as follows:
“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.”
In instruction No. 10 the jury were told that, if the driver of the automobile was violating any of the ordi
It is argued, however, that, since the respondents pleaded contributory negligence, it was not error to give the instruction complained of in this case. It may be that, had the instruction submitted to the jury the question as one of fact as to whether the respondents were negligent in not keeping the automobile nearer the right-hand curb than they did, it would have been a proper instruction; but the trouble with the instruction given is that it makes the violation of the ordinance as against the appellant, who was not of the class for whose benefit the ordinance was passed, presumptive negligence. It, of course, is the settled law of this state, as held in many cases, that “a thing done in violation of positive law is in itself negligence.” There was some discussion, more fully on oral argu
It is further argued that, even though the instruction be erroneous, it was not prejudicial. In this view we cannot acquiesce. The jury may have found in favor of the appellant because they were told that it was presumptive negligence not to keep the automobile as near the right hand-curb as practicable. The appellant cites the cases of Goninon v. Lee, 119 Wash. 471, 206 Pac. 2, and Grissom v. Seattle, 123 Wash. 131, 212 Pac. 264, as sustaining his contention that the instruction, even though erroneous, was not prejudicial. The situation in each of those cases was substantially different from that here presented and they do not justify a holding that the instruction was not prejudicial. There is no substantial difference between this case and that of Stoddard v. Smathers, supra, and under the authority of that case the trial court rightly granted the motion for new trial.
The judgment will be affirmed.
Bridges, Mackintosh, Holcomb, and Mitchell, JJ., concur.