Anderson v. Kinnear

• Decision Date: 27 July 1914
• Docket Number: 11938.
• Citation: 80 Wash. 638,141 P. 1151
• Parties: ANDERSON v. KINNEAR.
• Court: Washington Supreme Court

141 P. 1151

80 Wash. 638

ANDERSON v. KINNEAR.

No. 11938.

Supreme Court of Washington

July 27, 1914

Department 2. Appeal from Superior Court, Pierce County; H. L. Clifford Judge.

Action by John F. Anderson against C. H. Kinnear. From a judgment for plaintiff, defendant appeals. Affirmed.

Claassen & Williams, of Seattle, for appellant.

Govnor Teats, Leo Teats, and Ralph Teats, all of Tacoma, for respondent.

MOUNT J.

Plaintiff brought this action to recover for personal injuries alleged to have been sustained as the result of being run over by an automobile driven by the defendant. The case was tried to the court and a jury, and resulted in a verdict in the sum of $1,000 in favor of the plaintiff. After motions for a judgment notwithstanding the verdict and for a new trial were overruled, a judgment was entered upon the verdict for the amount thereof. The defendant has appealed. He first argues that the court erred in denying his motion for a nonsuit upon the ground that the evidence showed that the plaintiff was guilty of contributory negligence.

The facts, as disclosed by the plaintiff's evidence and evidently as found by the jury, were that on March 23, 1913 soon after noon, while the plaintiff was traveling west up the grade on Seventeenth street in the city of Tacoma, riding a motorcycle, just before he came to the intersection of Seventeenth with E street, he saw the defendant traveling south on E street in his automobile. Plaintiff testified that the defendant was traveling at the rate of about 24 miles an hour; that the plaintiff, as soon as he saw the defendant's automobile, shut off the power of his motorcycle and entered upon the crossing of E street at the rate of 2 or 3 miles an hour; that after going to about the center of the crossing, and seeing that the automobile was coming upon him, he stopped his motorcycle, but nevertheless was run down by the automobile and injured. There was other evidence to the same effect.

It is plain that, if the appellant was traveling south on E street at the rate of more than 12 miles an hour he was negligent, because the city ordinance introduced in evidence provides in substance that no person shall drive or operate an automobile on this street at a greater rate of speed than 12 miles an hour. The statute (Rem. & Bal. Code, § 2531) prohibits automobiles from driving over crosswalks or crossings or street intersections within the limits of any city or town, when any person is upon the same, at a rate of speed faster than one mile in 15 minutes. The respondent in this action was upon the crossing when he was injured. According to the testimony, he had stopped at the time the automobile struck him. It was clearly negligence for the appellant to run upon this crossing at the rate of 12 miles per hour when the respondent was upon the crossing, and, if the appellant ran upon the respondent at this rate of speed while the respondent was standing still, the appellant was clearly guilty of negligence, and the respondent was entitled to recover. We are satisfied, therefore, that the court properly submitted this question to the jury, and did not err in denying the appellant's motion for a nonsuit. Hillebrant v. Manz, 71 Wash. 250, 128 P. 892; Ludwigs v. Dumas, 72 Wash. 68, 129 P. 903.

It is next argued that the court erred in refusing to give an instruction as follows:

'Contributory negligence is any negligence upon the part of the plaintiff that proximately or naturally contributed to the injury, and, if you find from the evidence that the plaintiff was guilty of any such negligence as above defined, your verdict must be for the defendant.'

There was no error in refusing this instruction, because the court in substance gave the instruction, for the court said:

'If you find from the evidence that has been introduced that both the plaintiff and the defendant were guilty of negligence (that is, did not use the degree of care which an ordinarily prudent person would use under the circumstances and conditions in which they were situated), then and in that event your verdict should be for the defendant. A good guide to determine whether the plaintiff was guilty of negligence contributing to the injury is: Would there have been no accident and no injury to the plaintiff but for the negligence of the

...