Child v. Hill

• Decision Date: 02 January 1930
• Docket Number: No 21894.,21894.
• Citation: 155 Wash. 133,283 P. 1076
• Parties: CHILD v. HILL.
• Court: Washington Supreme Court

283 P. 1076

155 Wash. 133

CHILD v. HILL.

No 21894.

Supreme Court of Washington

January 2, 1930

Department 2.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Action by Dana Child against Roby A. Hill. From an adverse judgment the plaintiff appeals. Modified, and, as modified, affirmed.

Mitchell C.J., dissenting.

O. C. Moore, of Spokane, for appellant.

M. E. Mack, of Spokane, for respondent.

HOLCOMB J.

This is the second appeal in this controversy. See Child v. Hill, 149 Wash. 468, 271 P. 266.

The author of this did not concur in that opinion and still would be sympathetically inclined toward a recovery on this appeal, were it not that the principal questions of law arising from the facts were there decided. Both records have been carefully examined.

The case was retried on the same pleadings as before. The negligence charged by appellant was that respondent failed to give any signal or warning of his approach, and drove in a careless manner without regard to the rights and safety of appellant, a pedestrian, contrary to the provisions of sections 7, 23, and 37 of an ordinance of Spokane, No. C3158.

The answer was a general denial and a plea of contributory negligence, which reads, in substance, that, if the plaintiff was in any manner injured, same was due to his own negligence, in that, without regard for his own safety and without looking to east or west, plaintiff had stepped right in front of the defendant and stated that he did not look; that the negligence of the plaintiff as aforesaid was the proximate cause of any injury he may have sustained. The reply denied the allegations of the affirmative defense.

The first claim of error argued is that testimony was admitted outside the issues, in that defendant and his witnesses were permitted to testify that appellant 'walked into or against the right front wheel of the car,' when the allegation of the affirmative answer is 'that plaintiff without regard for his own safety and without looking to the east or west had stepped right in front of the defendant.'

It is argued that there is a variance between the allegation of the affirmative defense and the proof, in that the allegation is that appellant stepped in front of defendant (respondent) while the proof admitted was that he walked into or against the right front wheel of the car.

Rem. Comp. Stat. §§ 311 and 312, defining issues of fact and a trial, are quoted by appellant, and decisions from this court to the effect that a party must prevail according to the case made by his pleading, and that the allegations and proofs should correspond, under the Code. Marsh v. Wade, 1 Wash. 538, 20 P. 578; Jacobs v. First National Bank, 15 Wash. 358, 46 P. 396; McLachlan v. Gordon, 86 Wash. 282, 150 P. 441; Armstrong v. Spokane International Railway Co., 101 Wash. 525, 172 P. 578, L. R. A. 1918E, 460; Kerr v. Hansen, 140 Wash. 459, 249 P. 977; 38 Cyc. 326.

What are issues of fact under the Code, a trial, and what is necessary to prove under the settled issues of fact are well defined under the statutes above cited and the cases. But we have never understood it to be settled law that the proofs must correspond word for word with the allegations. Had the allegation of the affirmative answer in this case been that appellant, without regard for his own safety and without looking in either direction, had stepped right into the front of the automobile of appellant, there would apparently have been no contention that there was a variance between the allegations and the proof. In the cases cited and relied upon by appellant, there were radical variances by way of introduction of evidence relating to facts, or acts of negligence, which had in no wise been pleaded. That is not the case here, and we consider that there is no substantial merit in the contention upon this question.

Appellant next argues that there were erroneous and inconsistent instructions on contributory negligence given to the jury. The court gave nearly all the instructions requested by appellant, and also properly instructed the jury that the burden was upon respondent to sustain the affirmative allegations of his affirmative defense by a preponderance of the evidence. The issues were correctly defined.

Appellant argues that a portion of an instruction reading, '* * * If you find from the evidence in this case that the plaintiff, without having exercised proper precautions for his own safety, stepped in front of defendant's automobile, or walked against the defendant's automobile while it was standing, when in the exercise of ordinary care he could have avoided a collision,' etc., was a continuation with emphasis of the error committed in the admission of the above-mentioned testimony. We consider the admission of the above-mentioned testimony proper under the issues, and that the instruction complained of was a proper application of the law relating thereto. Sherrin v. Gevurtz, 142 Wash. 128, 252 p. 683.

The same instruction concluded as follows: 'If you are unable to say from a preponderance of the evidence whose negligence--if anyone was negligent--was the direct and proximate cause of the collision, then your verdict should be for the defendant.'

This conclusion of the foregoing instruction is assigned as the next error. It is extensively argued that under this instruction the jury was released from its obligation to return a verdict based upon the preponderance of the evidence, and authorized on the contrary to render a verdict for respondent because of inability to determine in whose favor rested the preponderance; or otherwise, if it was unable to agree on a verdict by a preponderance of the evidence, then by the simple fact of such inability the verdict should be in favor of defendant.

We are unable to agree with that argument. The jury had been told what preponderance of evidence meant and that the party having the affirmative of any issue was bound to sustain it by a preponderance of evidence. But, if there were no preponderance upon any affirmative issue, then the jury could not render a verdict supporting such affirmative issue. That is all that the instruction meant, and it was somewhat plainer than the one in Shish v. Northern Pacific Railway Co., 134 Wash. 390, 235 P. 818, 821, where the instruction complained of was: 'If you are uncertain on this question it would be a case, under the law, of a failure of proof, and your verdict would be for the defendants.'

We held in that case that, while the instruction was not very happily expressed, it was in no event prejudicially erroneous. In other respects the jury were correctly informed as to the meaning of fair preponderance of the evidence, burden of proof, and the issues, and we refused to reverse the judgment by reason of the instruction. We are bound by that decision here and cannot deem the instruction prejudicially erroneous.

The next error calimed and argued is in the submission of a special interrogatory. In one instruction given the jury, they were required, in the event of a verdict for appellant, to answer the following interrogatory: 'In what manner do you find that the defendant was negligent?'

Appellant argues that the special interrogatory was required to be answered only in the event of a verdict for plaintiff, and called for a finding upon an evidentiary fact, or act of negligence, upon which...