Borowsky v. Honolulu Rapid Transit Co.
| Decision Date | 03 June 1926 |
| Docket Number | No. 1649.,1649. |
| Citation | 29 Haw. 188 |
| Parties | JASCHA BOROWSKY v. HONOLULU RAPID TRANSIT COMPANY, LIMITED, AN HAWAIIAN CORPORATION. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. R. J. O'BRIEN, JUDGE.
Syllabus by the Court
In an action for damages for personal injuries, after the evidence was closed plaintiff was granted leave to amend his complaint by striking out certain allegations therein alleging lack of contributory negligence on the part of plaintiff. Defendant thereupon requested and was denied a continuance in which to plead to the complaint as amended. Allowance of the amendments and refusal of the continuance held not to have been prejudicial to defendant, the burden being upon defendant to prove contributory negligence upon the part of plaintiff and the allegations by plaintiff of lack of contributory negligence on his part being unnecessary.
The rights and obligations of persons using vehicles on the streets and of street railway companies operating cars on the same streets are mutual and reciprocal. Both are required to use due care to avoid collisions.
An instruction which directs a verdict on a finding of certain facts must embrace all necessary elements to support the verdict.
In an action for damages for personal injuries by a driver of an automobile against a street car company an instruction purporting to contain a full statement of the law upon which the right of plaintiff to recover is predicated which tells the jury that it is its duty to find for plaintiff if it finds the existence of certain facts but fails to tell the jury that it was the duty of a person finding himself in a perilous position to exercise all reasonable efforts to extricate himself therefrom is erroneous and such erroneous instruction is not cured by a subsequent correct instruction, since the two instructions are irreconcilable and it cannot be told which one was followed by the jury.
Instructions need not be given in the language requested if those which are given correctly state the law and fairly and sufficiently cover the ground. But where instructions are asked which correctly state the law on any issue presented it is error to refuse to give them unless the point was adequately covered by the instructions given. It is generally considered error to refuse to give a requested instruction on a given point which is accurate and applicable though the point may have been inferentially covered by a general instruction which was given.
J. B. Poindexter ( Thompson, Cathcart & Beebe with him on the briefs) for plaintiff.
A. G. M. Robertson ( Robertson & Castle on the briefs) for defendant.
This is an action for damages for personal injuries. In the complaint as originally filed it was alleged that on June 27, 1924, at about 9:30 A. M. the plaintiff was driving his automobile “with all due care and in conformity to the traffic regulations of the said Honolulu” along Beretania street in the direction of Ewa; that at a point on said street near a building known as the Bibee store while the plaintiff was driving the said automobile “with all due care as aforesaid and without negligence on his part, said automobile skidded on said Beretania street, coming to a stop on the street car tracks of the said defendant;” that at that time an agent or servant of the defendant corporation, acting within the scope of his employment, was operating or driving for and on behalf of defendant a street car in a manner so negligent, careless, heedless, reckless and at a speed so swift and with so little regard to the safety of the public, as not to have said street car under proper management or control; that by reason of the negligent, careless, heedless, reckless and rapid operation and driving of said street car it collided with the automobile of plaintiff; “that the plaintiff was at all times exercising due care and was at all times herein mentioned without fault;” that by reason of the collision the automobile of plaintiff was totally wrecked and plaintiff seriously injured. Plaintiff at the trial sought no damages for the injury to the automobile but confined himself solely to a claim for the injuries sustained to his person. At the first trial the jury disagreed. On the second trial the jury awarded damages to plaintiff in the sum of $2500 and the defendant corporation has brought the case here upon exceptions.
Plaintiff testified on his own behalf substantially as follows: On the morning of June 27, 1924, he was driving along Beretania street toward town in his Maxwell automobile; it was, or had been, raining and the street was wet; as he passed the Bibee building there was a truck parked in front of that building so he turned a little to the left to pass; as he did this his auto skidded into the street car track and came to a stop on the track; he saw the street car coming along toward him and tooted his horn and waved his hand as a warning to the street car to stop; he did not get out of the auto for he thought the street car would stop; the street car had time to stop; the street car was going fast and he thought he had no time to get out of the auto; when his auto skidded the wheels got into the street car tracks, he tried to turn the wheel and tried to get out of the car tracks but could not because the street was wet and the wheels would not go from the track; the engine was killed; when he stopped his automobile the street car was a little way on the Waikiki side of the Pond garage at a point which plaintiff marked on the map or plan introduced in evidence and agreed by the parties as being about 550 feet from where, according to plaintiff, he stopped his auto; the street car came on, struck the auto and pushed it back about fifty feet; plaintiff was seriously injured, became unconscious and was immediately carried to the hospital.
Celia Fidler testified that she saw the accident; that she saw the street car come from Alapai street to Beretania and saw the street car hit plaintiff's automobile; there were other autos going toward town; when plaintiff's auto passed the truck parked in front of the Bibee building it skidded a little; witness heard plaintiff toot his horn and saw him wave his hand; the accident happened in “one moment;” “this accident happened in one second and you cannot exactly tell how the thing took place.”
A. W. Gaspar testified that as he was walking along Beretania street toward Waikiki he saw plaintiff coming along in his auto; plaintiff
The testimony adduced on behalf of defendant need not be set out in detail. The substance of it was that after turning from Alapai street to Beretania the car was going at an ordinary rate of speed, about fifteen miles an hour; there were a number of autos coming along toward town and the motorman kept clanging the gong; the view was clear; the townward-bound street car was not in sight so the speed was reduced; when near the Bibee building plaintiff's auto suddenly shot out from behind another auto onto the street car track in front of the approaching street car, and the two collided; the motorman immediately “slugged” his car, applied the brakes and brought it to a stop in about a car's length. A witness for defendant, named Green, testified that he was driving a Ford immediately in front of the plaintiff. As he got near to the Bibee building a horn honked and the auto behind him speeded up a little and tried to go ahead of him, then tried to cross the car track, then tried to turn back again and collided with the street car.
After the evidence was closed plaintiff asked leave to amend paragraph 3 of his complaint by striking out the words “with all due care and in conformity to the traffic regulations of the said Honolulu;” and in a later part of the same paragraph, the words “with all due care.” Over the objections of defendant the court allowed the amendment requested and denied a motion of the defendant for a forty-eight hours' continuance in which to plead to the complaint as thus amended.
Under exceptions 1 and 2, defendant contends that the court erred in allowing these amendments and refusing defendant's motion for a continuance.
It is to be noted that even after the allowance of the above mentioned amendments, the complaint still contained the allegation that while plaintiff was driving his automobile “without negligence on his part,” said auto skidded on the street and came to a stop on the street car track, and the amended complaint still contained the allegation that “the plaintiff was at all times exercising due care and was at all times herein mentioned without fault.” In a case of this character, however, the burden of proving contributory negligence on the part of plaintiff is upon the defendant and it is not necessary that plaintiff should allege that he was free from contributory negligence. Such an allegation merely anticipates the defense of contributory negligence and does not throw on plaintiff the burden of maintaining such unnecessary allegation. (See Morgan v. Sunflower Zinc Co., 199 S. W. 590.) The allowance of the amendments, therefore, and the refusal of the continuance requested by defendant cannot be said to have in any manner been prejudicial to defendant. These exceptions...
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Cozine v. Hawaiian Catamaran, Limited
...This is not a case of irreconciliable conflict in the instructions, such as would preclude an affirmance. Compare Borowski v. Honolulu Rapid Transit Co., 29 Haw. 188, 199, with Ellis v. Mutual Telephone Co., 29 Haw. 604, 613-614, and see the explanation of the test of prejudicial error in K......