Burlie v. Stephens

Decision Date23 November 1920
Docket Number16093.
Citation193 P. 684,113 Wash. 182
PartiesBURLIE v. STEPHENS et al.
CourtWashington Supreme Court

Department 1.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Suit by Marvin Burlie against Fred Stephens and others. Judgment of dismissal, and plaintiff appeals. Affirmed.

Affidavits made a part of the transcript, but not embodied in or made a part of the statement of facts, will not be considered on appeal, on assignment that the court erred in denying motion for new trial for misconduct of jurors.

C. E. Stevens and Chas. A. Wallace, both of Tacoma, for appellant.

Ellis &amp Evans, of Tacoma, for respondents.

BRIDGES J.

Suit for personal injuries. The appellant is the guardian ad litem of Marvin Burlie. As such he instituted this action against the respondents for the purpose of recovering damages because of injuries to Marvin Burlie, who at the time of receiving such injuries was 12 years of age. The facts are substantially as follows:

The injury occurred at the intersection of J street and South Eighteenth streets in the city of Tacoma. One Forrest Ligman at the time of the injury was, and for a long time prior thereto had been , driving a Ford motor delivery truck or carriage for the respondents. Immediately prior to the accident he had made certain deliveries two or three blocks south of the intersection in question, and was on his way northerly on J street. When he was about 100 feet from the intersection of J and Eighteenth streets, he saw Marvin Burlie coming towards him and going south on J street, on roller skates. At that time the boy was about 100 feet north of the intersection of J and Eighteenth streets, being about the same distance north as the automobile was south of that point. Ligman was driving his automobile on his right-hand side of the street some few feet from the curb, and the boy was on the same side of the street, to wit, Ligman's right-hand side, or the boy's left-hand side. Ligman sounded his horn, but the boy did not change his course. Thereupon Ligman turned somewhat away from his right-hand curb and towards the center of the street, with the view of allowing the boy to pass between his automobile and his right-hand curb. The automobile and the boy each continued in practically a straight line to near the intersection of the streets. Had they so continued through the intersection, there would have been plenty of room between the automobile and the right-hand curb for the boy to pass. It appears that each, the automobile and the boy reached the intersection of the street at about the same time, and each must therefore have been traveling at about the same speed as the other. When the automobile reached the intersection, it was on the right-hand side of J street, but somewhat near the center thereof. Just as they were in the act of meeting, the body suddenly, and without any warning turned to his right immediately in front of the automobile. In an effort to avoid a collision, Ligman very suddenly swerved his car to his left and came into collision with the boy near the center of the intersection of the streets, but probably a little to the left of the center of J street. The automobile ran to approximately the southwest corner of the intersection of the streets, where it turned over on its side. The collision threw the boy several feet towards the opposite corner of the intersection. As a result of the collision, the boy was very seriously injured.

The accident occurred in broad daylight, and at a time when there were no other vehicles on either of these streets near their intersection. The case was tried to a jury, and resulted in a general verdict in favor of the respondents. Appellant's motion for new trial was denied, and judgment was entered dismissing the case, from which judgment the guardian has appealed. Of the more than 20 assignments of error presented, 2 are outstanding and run through the case, and they will be given particular attention.

First. It is first and chiefly contended by the appellant that the doctrine of last clear chance was involved, and that the court was in error in refusing to submit it to the jury. Numerous assignments of error are made to the instructions, on the ground that they failed to submit this question, and to the failure of the court to give certain of appellant's requested instructions, embodying the theory of the last clear change. If that doctrine is involved in this case, it is plain that there must be a reversal, for the trial court refused to consider it as applicable to the facts.

A reading of the record and the authorities convinces us that the doctrine of last clear chance was wholly inapplicable to any of the facts of this case. This court has held that whether this doctrine is applicable in a given case is a question of law, to be determined by the court. Hartley v. Lasater, 96 Wash. 407, 165 P. 106. This doctrine can never arise where the party charged is required to act instantaneously. It presupposes contributory negligence, and where that negligence creates instantaneously a dangerous situation, without an appreciable lapse of time in which to avoid it, there is no room for its application. Nowhere, to the knowledge of the writer, has the doctrine of last clear chance been more accurately and clearly stated than in the case last above cited, where this court said:

'Last clear change implies thought, appreciation, mental direction, and the lapse of sufficient time to effectually act upon the impulse to save another from injury, or the proof of circumstances which will put the one charged to implied notice of the situation. There was no duty upon appellants to slow down or to take such care as the doctrine of last clear chance demands, until they were put to the hazard of choice by some act of respondent. When respondent changed his position, he relieved appellants, unless the facts would warrant the court and jury in saying that there was sufficient time between his act and the impact for appellants to realize his peril and to avoid it. To invoke the doctrine of the last clear chance, we must grant the negligence of respondent, and find that his negligence 'had terminated or culminated in a situation of peril from which the exercise of ordinary care on his part would not thereafter extricate him'; that appellants knew and appreciated his danger, and could, in the exercise of reasonable care, have avoided injuring him. A mere statement of the rule reveals its inapplicability to a case where the contributory negligence began and culminated without the lapse of appreciable time. The doctrine is not applied where the negligence is concurrent.'

To the same effect see the following cases: Scharf v. Spokane & Inland Empire R. Co., 92 Wash. 561, 159 P. 797; Woolf v. Washington Railway & Navigation Co., 37 Wash. 491, 79 P. 997; Bullis v. Ball, 98 Wash. 342, 167 P. 942.

The testimony in this case conclusively shows that the boy would not have been hurt, had he continued on his course near his left-hand curb, and that he received his injury only because he suddenly and unexpectedly turned directly in front of the automobile, just as he was about to meet it. There was not sufficient lapse of time for the driver of the automobile to 'effectually act upon the impulse' to save the boy from injury. The rule of last clear chance cannot...

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    • United States
    • New Mexico Supreme Court
    • April 4, 1960
    ...a party is put to the hazard of choice by some act of the other party. Hartley v. Lasater, 96 Wash. 407, 165 P. 106; Burlie v. Stephens, 113 Wash. 182, 193 P. 684; Hynek v. Seattle, 7 Wash.2d 386, 111 P.2d 247; Colwell v. Nygaard, 8 Wash.2d 462, 112 P.2d See, also, Lapuyade v. Pacific Emplo......
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