Brammer v. Percival

• Decision Date: 24 February 1925
• Docket Number: 19013.
• Citation: 133 Wash. 126,233 P. 311
• Court: Washington Supreme Court
• Parties: BRAMMER v. PERCIVAL et ux.

233 P. 311

133 Wash. 126

BRAMMER v. PERCIVAL et ux.

No. 19013.

Supreme Court of Washington

February 24, 1925

Department 1.

Appeal from Superior Court, Pierce County; Clifford, Judge.

Action by S. H. Brammer against Monty Percival and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

R. S Holt, of Tacoma, for appellants.

Ellis Fletcher & Evans, of Tacoma, for respondent.

ASKREN J.

This appeal is from a judgment entered upon a verdict of a jury for personal injuries sustained when plaintiff was struck by defendants' automobile. The facts in the case are substantially as follows: On February 23 1924, at about 10 o'clock in the evening, plaintiff was waiting at the corner of Twenty-Fourth and Pacific avenue in the city of Tacoma for a street car to take him to his home. Seeing one approaching he stepped out into the street and walked to the usual stopping place to board street cars. At that time he saw the lights of an approaching automobile, which subsequently proved to be the defendants' car, about 150 feet away. As the street car was about to stop he took out his pass ready to board the car, and at that time was within two or three feet of the street car. At the same moment he was struck by defendants' automobile and knocked unconscious.

The appellant contends first that the court erred in giving an instruction to the jury which assumed that the street car was standing still at the time of the accident. The instruction given by the court is undoubtedly subject to this criticism; but the facts in the case clearly show that no prejudice could arise therefrom. An ordinance of the city of Tacoma, No. 7454, § 43, provides as follows:

'No vehicle shall pass along the right-hand side of any street car which is being brought to a stop for the purpose of taking on or unloading passengers, or which is standing in any street taking on or unloading passengers, without first coming to a complete stop, after which it may proceed past said car at a speed not greater than ten miles an hour and at a distance of not less than six feet from the running board or lower step of such car; and in no case shall the driver of any vehicle drive the same into a crowd of people waiting to board any car or unloading therefrom.'

It will thus be seen that the question as to whether the street car had come to a stop at the time respondent was struck, or whether it was about to come to a stop, is immaterial so far as this action is concerned. Under either state of facts the ordinance required approaching automobiles to come to a stop. There was no evidence in the case that would change the right of recovery based upon the question of whether or not the car had actually stopped. The undisputed evidence shows that respondent was at the proper place for passengers who were waiting to board street cars; that he had reached that point before appellants' automobile struck him, and that this was at a street intersection where pedestrians have the right of way. The street was well lighted, and the only defense offered for striking respondent was that the driver of the car did not see him. This it is apparent under the facts, was no defense. The instruction complained of, therefore, assumed a fact which was immaterial. Nunn v. Jordan, 31 Wash. 506, 72 P. 124.

Secondly, it is contended that the court erred in instructing the jury upon the question of contributory negligence, as follows:

'Contributory negligence is the want of ordinary care on the part of plaintiff, who is seeking to recover from a defendant for injury or loss, and must be such negligence as contributes to the happening of the injury or loss, and it must be proved by the one alleging contributory negligence.'

It is claimed that the latter part of the instruction, 'it must be proved by the one alleging contributory negligence,' means that where the appellant pleaded contributory negligence as an affirmative defense he would be required to produce the evidence of contributory negligence by his own witnesses instead of allowing the jury to find contributory negligence from the evidence of any witnesses in the case, including those of plaintiff. But we think this contention is too technical. The court, in its previous instruction No. 9, advised the jury as follows:

'The right of the plaintiff to recover in this case rests upon the allegations of negligence in his complaint charged against the defendant; and the burden of proof is upon the plaintiff to establish by a fair preponderance of the evidence all the material allegations of the complaint; but as to the charge of contributory negligence contained in the

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