Bates v. Tirk

• Citation: 31 P.2d 525,177 Wash. 286
• Decision Date: 17 April 1934
• Docket Number: 24966.
• Parties: BATES v. TIRK et ux.
• Court: United States State Supreme Court of Washington

31 P.2d 525

177 Wash. 286

BATES v. TIRK et ux.

No. 24966.

Supreme Court of Washington

April 17, 1934

Department 1.

Appeal from Superior Court, Spokane Couney; Fred H. Witt, Judge.

Action by Dorothy Bates, by her guardian ad litem, Albert M. Bates against Gregory Tirk, also known as George Tirk, and wife. Judgment for plaintiff, and defendants appeal.

Reversed with directions.

McCarthy & Edge, Leo F. Wilson, and M. E. Jesseph, all of Spokane, for appellants.

Robertson & Smith, of Spokane, for respondent.

STEINERT Justice.

This is an action to recover damages for injuries sustained by a minor in an automobile collision. The jury returned a verdict for plaintiff. From a judgment on the verdict, defendants have appealed. For the sake of convenience, the defendant Gregory Tirk will be hereinafter referred to as though he were the only appellant.

At the time of the accident, respondent was 16 years of age. She and her sister Virginia, who was then 18 years of age, lived with their parents, Mr. and Mrs. Albert M. Bates, in Spokane Wash. Mr. Bates owned a two-seated Star automobile, which was kept and used for family purposes. About four blocks from the Bates home lived Royer Bogenreif, a young man 20 years of age and a friend of the Bates family. The three young people were all students at the same high school. Bogenreif had, on frequent occasions, been out riding with various members of the Bates family, in their Star automobile, and on such occasions had usually done the driving. On October 23, 1932, a football game was scheduled to be played at the high school grounds, which was several miles distant from the Bates and Bogenreif homes. Bogenreif went to the Bates home in the forenoon of that day, with the intention of taking the girls to the foothall game, provided that they were allowed to use the Star car. Virginia asked her father whether they might have the car, and, on being told that they were going to the football game, the father gave his consent. It appears to have been understood that Bogenreif was to drive, although his driving was not made a condition of the father's consent to their use of the car. Bogenreif replenished the car with two gallons of gasoline purchased by himself. The three young people then rode in the car, with Bogenreif driving, to the school grounds and witnessed the game. It appears that a second game was also scheduled to be played the same afternoon. After the first game, the party of three left the grounds, intending to drive to Bogenreif's home to enable him to get his overcoat. They also intended, it seems, to return for the second game. On leaving the grounds, they invited two other boys, who were also high school students, to accompany them in the car. The invitation was accepted. The course along which they then drove, up to the time of the accident, was over the very road which they would have taken in going to the home of the girls; the deviating road leading to the Bogenreif home was about two miles distant from the place where the accident occurred and just a short distance from the Bates home. The car proceeded southward from the football field along Regal street to Nebraska avenue. While crossing the intersection of the two streets, the car was struck by an automobile driven by appellant, coming from the east. Appellant's car ran directly into the left side of the Star car, hurling it over onto the sidewalk on the southwest corner of the intersection. Respondent was thrown from the car and sustained very painful and serious injuries, for which this action was brought.

The complaint charged appellant with carelessness and negligence, in that he drove at the excessive speed of forty miles per hour, in that he failed to have his car under control and neglected to give any warning or to apply his brakes, and in that he failed to turn aside and yield the right of way to the car in which respondent was riding. The evidence concededly presented such a conflict upon questions of fact as to make the case one for the jury, under proper instructions.

The assignments of error relate to the admission of certain evidence, the refusal to grant a mistrial, the refusal to give certain instructions and the giving of others, and the refusal to grant a new trial on the grounds of excessiveness of the verdict and improper argument of counsel.

A witness was permitted to testify, over appellant's objection, that in his opinion the appellant was very drunk at the time of the accident. Later on in the course of the trial the court, on its own motion, struck the evidence and admonished the jury to disregard it. Appellant contends, first, that this evidence was improper, because the complaint contained no allegation of intoxication. In passing on this question, we limit ourselves to the specific ground of appellant's assignment of error. Appellant did not claim surprise.

If the driver of an automobile exercises the care which the law requires, the fact that he is intoxicated at the time does not, of itself, furnish any ground of liability, in the absence of any statute thereon. However, the fact of intoxication is admissible on the issue of negligence where the evidence of negligence is conflicting or different inferences may be drawn therefrom. 2 Blashfield, Cyc. Automobile Law, p. 1677; Finn v. Sullivan, 110 Cal.App. 38, 293 P. 639; Landham v. Lloyd, 223 Ala. 487, 136 So. 815; Bray-Robinson Clothing Co. v. Higghins, 210 Ky. 432, 276 S.W. 129; Powell v. Berry, 145 Ga. 696, 89 S.E. 753, L. R. A. 1917A, 306.

A person under the influence of intoxicating liquor is unfit to operate an automobile, not only because of the excessive speed that he may attain or the devious course that he may follow, but also because his brain may not properly function in co-ordination with his hands or his feet even under the ordinary circumstances attendant upon the progress of traffic. The jury is therefore entitled to consider evidence of intoxication as bearing on the question of negligence.

Appellant next contends that, the evidence having been withdrawn by the court, it was error not to discharge the jury from further consideration of the case. If, for any reason, the admission of this evidence be considered improper, its effect was cured by its withdrawal and the court's emphatic instruction to the jury to disregard it. Errors of this nature will be considered as having been corrected by proper admonition or instruction from the court to the jury, unless it is affirmatively shown, or this court is otherwise convinced, that the admonitions and instructions have failed of their purpose. Bayers v. Barry, 114 Wash. 252, 194 P. 993; Samuels v. Hiawatha Holstein Dairy Co., 115 Wash. 343, 197 P. 24; DeHoney v. Gjarde, 134 Wash. 647, 236 P. 290; Slattery v. Seattle, 169 Wash. 144, 13 P.2d 464.

There is no affirmative showing of any prejudice here. Nor are we convinced that the admonition given by the court failed of its purpose. The testimony, given in response to a single question, was but the conclusion of the witness, and must have been so understood by the jury. The admonition of the court covered the form an extent of the testimony and specifically directed that it be disregarded. That was sufficient.

Appellant's third assignment of error is upon the refusal of the court to give an instruction on the subject of joint venture. Another assignment is based upon the giving of an instruction by the court to the effect that respondent was, as a matter of law an invitee,...