Fleming v. Red Top Cab Co.

• Decision Date: 06 March 1925
• Docket Number: 18967.
• Citation: 133 Wash. 338,233 P. 639
• Parties: FLEMING v. RED TOP CAB CO.
• Court: Washington Supreme Court

233 P. 639

133 Wash. 338

FLEMING v. RED TOP CAB CO.

No. 18967.

Supreme Court of Washington

March 6, 1925

Department 2.

Appeal from Superior Court, King County; Tallman, Judge.

Action by Agnes M. Fleming against the Red Top Cab Company and another. From a judgment against the named defendant, it appeals. Affirmed.

Van Dyke & Thomas, of Seattle, for appellant.

Newman H. Clark, of Seattle, for respondent.

MACKINTOSH J.

The jury in this case returned a verdict for the respondent in an action for personal injuries brought against the appellant, which is the owner and operator of taxicabs in one of which the appellant was a passenger, and Whiton Hardware Company, the owner and operator of a truck which came into collision with the car in one of the street intersections in the city of Seattle. Upon the trial the hardware company was dismissed from the action, and the taxicab company has appealed. Four principal errors have been assigned:

1. That the court should have dismissed the action for failure of the respondent to introduce sufficient evidence to establish the appellant's negligence.

A reading of the record shows that the collision occurred at a street intersection where the appellant was required to drive at a rate of not over 12 miles an hour, and that the car at the time was going at least 16 miles an hour. It also shows that the driver's vision was so obscured as he approached the intersection, that the jury had a right to say that he was negligent in attempting to cross the intersection without exercising more care than the jury was warranted in finding that he did exercise. The fact that the truck may also have been at fault could not relieve the appellant of its liability, for the respondent is entitled to a verdict against one of the tort-feasors, and the one held responsible cannot complain that his joint tort-feasor is not also held. Nelson v. Bromley, 55 Wash. 256, 104 P. 251; Thorsen v. St. Paul & Tacoma Lumber Co., 73 Wash 99, 131 P. 645, 132 P. 860.

2. Exception is taken to an instruction by the court, a part of which is as follows: 'And the defendant Red Top Cab Company is liable for the slightest negligence in its operation.' It is to be borne in mind that the respondent was a passenger to whom under the law the carrier owed the highest degree of care, and while the portion of the instruction quoted has been criticised by some courts yet it has been held by us to be a proper statement of the law, and, when taken in conjunction with the full instruction of the court on the subject, it cannot be said to be erroneous. In Jordan v. Seattle, Renton & Southern Ry. Co., 47 Wash. 503, 92 P. 284, we approved the following instruction:

'The jury are instructed that the defendant, at the time of the alleged accident, was the owner of and was operating an electric railway for the purpose of transporting passengers for hire, and was bound to exercise the highest degree of care, skill and diligence practicable, consistent with

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