Domke v. Gunning

• Decision Date: 28 March 1911
• Citation: 62 Wash. 629,114 P. 436
• Parties: DOMKE v. GUNNING.
• Court: Washington Supreme Court

114 P. 436

62 Wash. 629

DOMKE v. GUNNING.

Supreme Court of Washington

March 28, 1911

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Julia Ellen Domke against Henry Gunning. Judgment for plaintiff, and defendant appeals. Affirmed.

Gallagher Smith & Mack, for appellant.

Post Avery & Higgins, for respondent.

FULLERTON J.

The appellant, while driving an automobile on the streets of the city of Spokane, ran against the respondent and severely injured her. She thereupon brought the present action to recover for the injuries so suffered, and on the trial was awarded a verdict in the sum of $3,500. From the judgment entered thereon, this appeal is prosecuted.

The assignments of error relate to certain instructions given by the court, and the refusal to give certain others, and failing to rule that the defendant was guilty of contributory negligence as a matter of law.

From the instructions we quote the following: 'You will observe that the case proceeds upon the charge of negligence plaintiff alleging that the defendant was negligent in the driving of his automobile and that this negligence was the cause of the collision with her, while the defendant denies negligence on his part, and alleges that the proximate cause of the collision was the plaintiff's own carelessness and negligence. I instruct you that both the plaintiff and the defendant with his automobile had a right to the use of the streets of the city at the time and place in question; plaintiff having the right to cross the street and the defendant having the right to drive along the street with his automobile. Each party, however, owes a legal duty to the other in using the street. It was the duty of the plaintiff in starting across the street to exercise reasonable care for her own safety, and it was the duty of the defendant in driving his automobile to exercise reasonable care so as to avoid injuring any one, or colliding with any other person upon the street. The operation of an automobile upon the busy streets of a city necessitates exceeding carefulness on the part of the driver. Moving quietly as it does, without the noise which accompanies the movement of a street car or other ordinary heavy vehicle, it is necessary that caution should be continuously exercised to avoid collisions with pedestrians unaware of its approach. The speed should be limited, warning of approach given, and skill and care in its management so exercised as to anticipate such collisions as the nature of the machine and the locality might suggest as liable to occur in the absence of such precautions. It was also the duty of the defendant to observe all the provisions of the ordinance of the city of Spokane with reference to the speed of driving his automobile, the giving of any signal or warning, and the manner in rounding corners. In this respect I instruct you that under the ordinance of this city it would be negligence on the part of any person driving an automobile to drive it at the place in question at a greater rate of speed than four miles an hour; also, it would be negligence for the defendant to round the corner from Sprague avenue into Post street closer to the curb than six feet. In this respect I instruct you that if you find from the evidence that there was débris or building material piled upon the sidewalk, so that the same was impassable for foot passengers, and that said débris and building material extended beyond the sidewalk into the street, so that foot passengers were required to use the street in common with horses and vehicles, and if you find that the evidence also shows that this condition existed at the corner and upon both Sprague avenue and Post street and that there was a fence or barricade separating the débris and building material from the street, then the fence or barricade would be regarded as the curb in the provision of this ordinance. If you find from the evidence that the defendant at the time and place in question failed to exercise such care in any or all these respects as an ordinarily prudent person would exercise under like circumstances, or if you find from the evidence that the defendant was negligent in any of the respects provided in the ordinance or otherwise, and that his negligence in any of such respects was the direct and proximate cause of the collision and the injury to plaintiff, then the defendant would be liable to her for the injury she sustained. On the other hand, if you should find from the evidence that the plaintiff herein was negligent and that her own negligence was the direct and proximate cause of the collision and her injury, or that her own negligence contributed to the collision and the injury in...