Bullis v. Ball

• Decision Date: 22 September 1917
• Docket Number: 13717.
• Court: Washington Supreme Court
• Parties: BULLIS v. BALL et ux.

167 P. 942

98 Wash. 342

BULLIS v. BALL et ux.

No. 13717.

Supreme Court of Washington

September 22, 1917

Department 1. Appeal from Superior Court, Spokane County; William H Huneke, Judge.

Action by Adams H. Bullis against W. J. Ball and Mrs. Palmyre Ball husband and wife doing business under the name and style of the W. J. Ball Motors Company. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded, with direction to enter judgment for defendants.

Harry L. Cohn and Plummer & Lavin, all of Spokane, for appellants.

Tustin & Chandler, of Spokane, for respondent.

WEBSTER J.

This is an action to recover damages for personal injuries alleged to have been sustained in a collision between an automobile and a motorcycle in the city of Spokane. The facts necessary to an understanding of this opinion are as follows: On February 27, 1916, the defendant W. J. Ball, who was engaged in the business of selling automobiles, was demonstrating to a prospective purchaser a six-cyclinder Studebaker machine. The purpose of the demonstration was to show the power of the engine in climbing a hill on high gear without increasing the momentum of the car before reaching the beginning of the incline upon which the demonstration was being given, and also without increasing the speed of the machine while in the act of ascending the hill. The complaint sets forth the negligence of the defendant in the following language:

'That on or about the 27th day of February, A. D. 1916 said defendant W. J. Ball, at about the hour of between 2 [98 Wash. 344] and 2:30 p. m. of said day, was demonstrating a high-power automobile of Studebaker make, having with him in his automobile at said time a prospective purchaser; that said defendant ran his automobile south on Maple street in the city of Spokane, county of Spokane, state of Washington, and at or about a distance of two or three blocks north of the intersection of said Maple street and Sixth avenue said defendant negligently increased the speed of his automobile to a rate of between 25 and 35 miles per hour, and maintained said rate of speed from said time on until the automobile which he owned and was driving ran into and injured plaintiff at the intersection of said Maple street and Sixth avenue, said injuries being more particularly described hereinafter in this complaint; that at the time and place aforesaid, while plaintiff was riding on his motorcycle going east on Sixth avenue and while crossing said Maple street at the intersection, said defendant W. J. Ball came from the north on said Maple street at a great and excessive rate of speed, to wit, between 25 and 35 miles per hour, and so negligently and carelessly operated his said machine at said time and place that plaintiff was run over by the automobile being driven by said defendant; that said defendant failed to give any signal or warning whatsoever of his approach or to apply his brakes, and did not slacken the speed of his car until after it had passed over and beyond the said plaintiff; that said defendant at the time and place of the injury to plaintiff hereinbefore referred to was driving his automobile in a careless and negligent manner and in violation of Ordinance No. C1832 of the city of Spokane, the title of said ordinance being as follows: 'Ordinance No. C1832. An ordinance regulating the traffic of the streets of the city of Spokane, Washington,' passed by the city council November 30, 1914; that said defendant violated sections 18 and 19 thereof. Reference is hereby made to said ordinance and pladed herein to the same extent as though set out verbatim in this complaint.'

Sections 18 and 19 of the ordinance referred to in the complaint are as follows:

'Sec. 18. No vehicle shall travel at a speed faster than fifteen (15) miles an hour when inside the fire limits, nor faster than twenty (20) miles an hour when outside the fire limits.

'Sec. 19. No vehicle shall be operated or moved at a speed greater than is reasonable and proper, having regard for the traffic and use of the way by others, or so as to endanger the life or limb of any person.'

Subsequently the complaint was amended by alleging the violation of section 24 of the same ordinance, which reads as follows:

'A vehicle except when passing a vehicle ahead shall habitually keep as near the right hand curb as possible.'

The street intersection at which the collision occurred is at Sixth avenue and Maple street, and is outside of the fire district of the city of Spokane. Between Fifth avenue and Sixth avenue Maple street is on an ascent of approximately 5 per cent. and between Sixth avenue and Seventh avenue runs abruptly upgrade. From the alley which intersects the block between Fifth avenue and Sixth avenue on Maple street on the west side of the street there is practically no obstruction to the view of one riding east on Sixth avenue nor to one approaching Sixth avenue in a southerly direction on Maple street. So that there is an unobstructed view between the buildings on Maple street at the alley and the intersection for a distance of about 140 feet. As defendant's automobile approached Sixth avenue on Maple street, going in a southerly direction, the plaintiff with his wife was riding a motorcycle in an easterly direction on Sixth avenue toward Maple street. At the intersection of the two thoroughfares a collision occurred between the automobile and the motorcycle, resulting in the death of Mrs. Bullis and the severe injury of the plaintiff. This action in damages was subsequently instituted by the plaintiff, the driver of the motorcycle.

After instructing the jury as to the law of the case, the trial court submitted several special interrogatories, which with the answers returned by the jury, are as follows:

'(1) At what speed was plaintiff going on the motorcycle as he entered the intersection of Maple street with Sixth avenue? Ans. Twenty miles per hour.

'(2) Was that speed reasonable under all the circumstances then shown to exist? Ans. Yes.

'(3) At what speed was defendant going with the automobile as he entered the intersection of Sixth avenue with Maple street? Ans. Twenty miles per hour.

'(4) Was that speed reasonable under all the circumstances then shown to exist? Ans. Yes.

'(5) Did the motorcycle skid and fall before it was struck by the automobile? Ans. Yes.

'(6) After the defendant in the automobile actually saw the plaintiff on the motorcycle, could defendant have stopped his automobile before striking plaintiff's motorcycle? Ans. No.'

The jury returned a general verdict in favor of the plaintiff, assessing his damages in the sum of $3,000. Defendant made a motion for judgment notwithstanding the verdict, which was denied, and this appeal followed.

The jury by its special findings having absolved defendant from all charges of negligence growing out of his alleged violation of sections 18 and 19 of the ordinance referred to in the complaint, the case presents two questions for consideration. They are: (1) Can the general verdict be sustained under the doctrine of the last clear chance; (2) was defendant's violation of section 24 of the ordinance, requiring him to drive his automobile as near the right-hand curb as possible, a sufficient foundation upon which the verdict can rest?

Under the first proposition we shall consider plaintiff's contention that, notwithstanding the special findings of the jury, the case admits of the application of the last clear chance doctrine, and that the verdict can be soundly upheld upon that theory. We are unable to subscribe to this view, for two reasons: (a) The record under consideration shows beyond question that the accident occurred instantaneously, and therefore there was no last clear chance to avoid the injury open to the defendant; and (b) the jury by its answer to special interrogatory No. 6 found that the defendant could not have avoided the accident after he actually saw the plaintiff's perilous situation. We shall not elaborate upon the first reason further than to say that the case falls squarely within the rule recently announced by this court in the case of Hartley v. Lasater, 165 P. 106. Counsel for plaintiff, however, contend that the finding of the jury to the effect that the defendant after he actually saw plaintiff could not have avoided the accident does not control the general verdict, for the reason that it is not sufficiently broad to cover all aspects of the last clear chance rule. It is urged that the special finding makes no mention of when the defendant in the exercise of reasonable care ought to have seen the plaintiff, and that defendant's failure to see plaintiff before the time that he actually did see him is an act of negligence upon which the verdict of the jury may be predicated. This contention would have merit had this phase of the last clear chance rule been submitted to the jury by the instructions of the court. But in view of the record in this case the position clearly is untenable. The instruction on the last clear chance doctrine is as follows:

'I instruct you that the law of last clear chance as applied to this case is that, where a defendant in operating an agency of danger is confronted with a perilous situation which is brought about by the negligence of the plaintiff, but notwithstanding said negligence of the plaintiff the defendant could, by the use of reasonable precaution, have prevented said injury, then in that event the law requires him to take advantage of the last clear chance to prevent an injury, and in this connection I instruct you that, if you find from the evidence that as the defendant was journeying south on Maple street and the motorcycle driven by the plaintiff came across his path and by the exercise of reasonable diligence and

...