Cloherty v. Griffiths

• Citation: 82 Wash. 634,144 P. 912
• Decision Date: 17 December 1914
• Docket Number: 12009.
• Court: Washington Supreme Court
• Parties: CLOHERTY v. GRIFFITHS.

144 P. 912

82 Wash. 634

CLOHERTY v. GRIFFITHS.

No. 12009.

Supreme Court of Washington

December 17, 1914

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by Michael Cloherty against John G. Griffiths. From a judgment for plaintiff, defendant appeals. Affirmed.

Claassen & Williams, of Seattle, for appellant.

Boyle Brockway & Boyle, of Tacoma, for respondent.

CHADWICK J.

Plaintiff while riding a bicycle on the main highway between Tacoma and South Tacoma, was struck by defendant's automobile and suffered the injuries of which he now complains. From a verdict and judgment in favor of plaintiff, defendant has appealed.

Plaintiff's testimony tends to show that he was following the extreme right-hand side of the road when defendant drove up behind him. It is contended that, when plaintiff became aware of the approach of defendant's machine, it was his duty to turn out to his left so that defendant could turn or pass to the right. Rem. & Bal. Code, § 5569. Or, to restate the proposition, to leave the extreme right side of the road and go over to the left side leaving the right half of the way clear for the defendant. The presence and position of plaintiff was known to the driver of the machine, and, notwithstanding the statute, the question for the jury was whether defendant exercised that degree of care for the safety of plaintiff which should mark the conduct of a man of ordinary prudence, acting under a like set of circumstances.

We have but recently passed upon this phase of the law, holding:

'Being in imminent danger, an emergency was presented, and whether under this emergency the respondent acted with due prudence is, under all the authorities, a question of fact for the jury. The law does not scrutinize too carefully an act done by one who has been put in a position of danger by the one who inflicts injury upon him, leaving it for the jury to say, under such circumstances, whether the act in seeking to avoid the danger was the act of an ordinarily prudent man. It is true we have said in a number of cases, and it is undoubtedly the law, that the failure to observe the law of the road is negligence. But this rule must be applied in connection with the circumstances under which its observance is called for, and as applied to the facts in this case we do not think that we can say as a matter of law that respondent's act was such as to preclude his recovery.' Sheffield v. Union Oil Co., 144 P. 529.

It is complained that the complaint does not state a cause of action, in that, after stating the due care of plaintiff, it alleges that 'defendant, operating, using, and driving an automobile, drove along said road behind the plaintiff and carelessly, negligently, and disregarding the right of plaintiff, ran his automobile and drove the same on, upon, and against the plaintiff with great force and speed, etc.;' but it does not allege the particular ground of negligence, that is, excessive speed, reckless driving, exceeding speed limit, incompetence, failure to sound a warning, failure to concede right of way, or intoxication. We think the complaint is sufficient. It is a plain, concise statement of the facts relied on and of the fact that plaintiff was in a place of safety and that defendant ran him down with force and speed. Nothing would have been added to the complaint had it contained the conclusion of the pleader that defendant was guilty of 'reckless driving.'

Error is predicated upon the refusal of the court to give a requested instruction covering the law of mutual or concurring negligence. The only difference between the requested instruction and the one given by the court is that the reason for the rule is there set out. The law does not require a trial judge to give reasons for a rule. It is enough if he charges the law.

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