O'Connell v. Home Oil Co., 24970.

• Decision Date: 25 January 1935
• Docket Number: 24970.
• Citation: 180 Wash. 461,40 P.2d 991
• Court: Washington Supreme Court
• Parties: O'CONNELL v. HOME OIL CO. et al.

40 P.2d 991

180 Wash. 461

O'CONNELL v. HOME OIL CO. et al.

No. 24970.

Supreme Court of Washington

January 25, 1935

Department 2.

Appeal from Superior Court, King County; Howard M. Findley, Judge.

Action by Julia O'Connell, personally and as administratrix of the estate of Jerry O'Connell, deceased, against Home Oil Company and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Padden & Moriarty and Earl F. Requa, all of Seattle, for appellant.

Whittemore & Truscott and Arthur L. Haugan, all of Seattle, for respondents.

STEINERT Justice.

This is an action to recover damages for death resulting from a collision between two motor vehicles. The jury returned a verdict for defendants. Motion for new trial was denied and judgment for defendants was entered upon the verdict. Plaintiff has appealed.

A brief statement of the case will suffice for the presentation of the questions here involved.

Fauntleroy boulevard, in Seattle, runs north and south, and is crossed at right angles by West Brandon street. In this vicinity Fauntleroy boulevard is fifty-four feet wide, the easterly portion of eighteen feet being paved, the westerly portion of thirty-six feet being a dirt roadway with a gravelled surface.

On February 20, 1932, at about 3:30 p. m., Jerry O'Connell was driving a Chevrolet automobile north along the easterly or paved, side of Fauntleroy boulevard toward West Brandon street. A large oil truck, owned by respondent Home Oil Company and driven by Joseph Porcella, an officer of the company, was proceeding south along the paved section of the boulevard toward West Brandon street. It was raining and sleeting at the time and the pavement was wet. At a point approximately fifty feet north of the intersection the two vehicles collided; Mr. O'Connell receiving severe injuries resulting in his death. This action was instituted by his widow as administratrix and as surviving spouse for her own benefit and for the benefit of their minor son.

The issues presented by the pleadings were negligence in the operation of the truck and violation of the last clear chance rule, charged against the respondents, and contributory negligence, charged against the decedent.

The evidence as to how the accident occurred and who was to blame for it was in direct and serious conflict. Respondents' evidence was to the effect that the dirt section of the boulevard was too soft to accommodate the truck on account of its weight; that it was, therefore, traveling along the extreme right of the paved section; that both north-bound and south-bound traffic customarily used the pavement; that the speed of the truck was about twenty miles per hour; that the Chevrolet car approached and crossed West Brandon street at a speed of about forty miles per hour; that the Chevrolet ran into the curb at the northeast corner of the intersection and into a grating or sewer basin next to the curb, causing it to lurch forward and swerve diagonally across the pavement and in front of the truck; and that the driver of the truck at once applied his brakes, but was unable to avoid the collision. The evidence of the appellant was to the effect that the Chevrolet car was proceeding north, straight along Fauntleroy boulevard, toward West Brandon street, about a foot and a half from the east curb, and at a speed of about twenty or twenty-five miles per hour; that the truck was approaching from the north and was traveling along the middle of the paved portion of the boulevard at a speed of about twenty-five miles per hour; that when the Chevrolet car crossed the intersection, it slowed down to about ten miles per hour and drew over toward the east curb in order to pass the truck; that in doing so, it scraped the curb but did not strike it in such a way as to cause it to swerve from its path; that the Chevrolet did not pass over the grating in the street at all; that the truck came straight on without changing its course or reducing its speed and ran directly into the Chevrolet, causing the injuries complained of.

There are eleven assignments of error, all but one of them being based on instructions given, or else refused. The court gave twenty-eight instructions, covering fifteen typewritten pages. Thirteen of the instructions were those requested by appellant.

The first, and principal, assignment of error is based upon the giving of instruction No. 6. That instruction, after correctly defining 'contributory negligence,' concludes as follows 'If the deceased was guilty of contributory negligence, plaintiff [appellant] here cannot recover, even though you should believe that the defendant [respondent] driver was guilty of negligence as charged.

'The burden of proving contributory negligence rests upon the defendants [respondents].'

In its preliminary statement of the case and the issues, the court had advised the jury that appellant alleged in her complaint that respondents were negligent in various respects, including that of failure on the part of the truck driver to exercise reasonable care to avoid the collision, when he saw, or by the exercise of reasonable care should have seen, that a collision was imminent. At the request of appellant, the court later gave instruction No. 17 embodying the last clear chance rule.

It is now appellant's contention that instructions Nos. 6 and 17 are in direct conflict and irreconcilable, and that the giving of instruction No. 6 was prejudicially erroneous.

We may concede that instruction No. 6, although a usual one given on contributory negligence, is, by reason of the last clear chance issue, in a sense technically inconsistent with instruction No. 17. But we do not concede, nor do we think, that it was prejudicially erroneous. It is not necessary that each instruction contain a complete exposition of the law applying to the point in controversy. Thornton v. Eneroth (Wash.) 39 P.2d 379; Comstock v. Morse, 107 Cal.App. 71, 290 P. 108. Instructions are to be read and accepted as a whole, and no one particular instruction is to be selected and undue emphasis placed thereon. It is the settled rule in this state that, although detached statements or expressions of the court in its charge to the jury may be technically erroneous, yet if the instructions as a whole fairly state the law, there is no prejudicial error. Cheichi v. Northern Pacific R. Co., 66 Wash. 36, 118 P. 916; Wiles v. Northern Pacific R. Co., 66 Wash. 337, 119 P. 810; Fichtenberg v. Lincoln County, 150 Wash. 459, 273 P. 178, 180. In the last case cited, we said: 'It is also assigned as error that the court, in instruction No. 15, spoke of the liability of a county if it failed to exercise reasonable care and diligence in keeping its highways in reasonably safe condition for travel; the argument being that the instruction makes the county liable without any reference to the contributory negligence of the respondent. It is another case of picking out a single instruction for the purpose of criticism. In other instructions the jury had been fully advised on the subject of contributory negligence and the effect of it, if found by a fair preponderance of the evidence. It is well settled that instructions from the viewpoint of the jury are to be considered all together, or that each is to be considered in the light of all others, and in this case the jury was specifically told, 'These instructions are given by the court as a whole and are so to be considered by the jury. Each and every instruction is to be considered by you in connection with all the other instructions.''

In the case at bar, the jury was specifically told by the court in its instruction No. 2 that: 'You shall consider the instructions as a whole, and not pick out any particular instruction and place undue emphasis on such instruction.'

This is not a case where two inconsistent rules of law are given upon a single and distinct issue of fact, thereby confusing the jury as to which rule it should follow. There are here two separate issues, one resting upon the contributory negligence of the deceased, and the other upon the...