Gray v. Washington Water Power Co.

• Decision Date: 10 January 1903
• Citation: 30 Wash. 665,71 P. 206
• Parties: GRAY et ux. v. WASHINGTON WATER POWER CO.
• Court: Washington Supreme Court

71 P. 206

30 Wash. 665

GRAY et ux. v. WASHINGTON WATER POWER CO.

Supreme Court of Washington

January 10, 1903

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by John R. Gray and wife against the Washington Water Power Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

See 68 P. 360; 70 P. 255.

Stephens & Bunn and W. F. Townsend, for appellant.

W. H Plummer and Thayer & Belt, for respondents.

DUNBAR J.

Respondent Carrie Gray was driving in a one-horse buggy on the streets of Spokane. Her horse became frightened and ran away, and it is alleged that when the buggy struck the rails of appellant's street car line, which was maintained on the street, the respondent was thrown from the buggy and was injured, and that the injury was caused by the negligence of the appellant in not maintaining its rails flush with the streets, in accordance with an ordinance of the city. A more extended statement of this cause may be found in 27 Wash. 713, 68 P. 360. Upon the trial of the cause a verdict was rendered in favor of the plaintiff, and upon motion for a new trial the same was granted on the ground that the running away of the horse and the loss of control of the horse were the proximate cause of the accident and injury complained of. This question came to this court on appeal and it was decided, in Gray v. Water Power Co., 27 Wash. 713, 68 P. 360, that the loss of control of a runaway horse would not prevent a recovery, notwithstanding the defective condition of the street. The rule was announced that, where two causes combine to produce an injury to a traveler on a highway, both of which are in their nature proximate, the one being a culpable defect in the highway and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect. This rule was applied to the appellant company, which was operating its cars under a grant of power from the city imposing the duty upon it to keep its rails flush with the street, and the judgment for a new trial was reversed, and the cause remanded, with instructions to deny the motion. Judgment was then entered in favor of respondents for the amount of damages found by the jury, from which judgment this appeal is prosecuted.

It is assigned that the court erred in giving instructions numbered 5, 6, 9, 16, and 17, in refusing to give instruction No. 6 asked by appellant, and in giving it in a modified form. In answer to the alleged error in the refusal of the court to grant a new trial on the ground of insufficiency of the evidence to sustain a verdict, and because the verdict is against the law, if these questions were not decided in opposition to appellant's contention on the former appeal, it may now be stated that on every material fact put in issue by the pleadings there was such a conflict of testimony as rendered necessary their submission to the jury; and, conceding the correctness of the law announced by this court on the former appeal, and which has become the law of the case, we can see no reason for interfering with the verdict of the jury, if the cause was submitted upon proper instructions.

The first instructions assailed by the appellant is No. 5, which is as follows: 'The ordinance which has been referred to in the complaint, and which has been admitted in evidence, contains certain requirements and regulations as to the manner in which the defendant's tracks shall be kept and maintained by it. These requirements are valid regulations imposed by the city of Spokane, and are imposed upon the defendant for the purpose of compelling the streets and highways to be kept in a safe condition for public travel, so far as the defendant's tracks are concerned; and if any person is, without negligence on his or her part, injured on account of the negligent failure of the defendant company to comply with the terms of said ordinance in respect of the condition of its track, then such person is entitled to recover from the defendant the damage so sustained, unless you should further find from the evidence that some sufficiently efficacious method be applied to keep the streets in safe condition for public travel.' The latter part of the instruction is criticised as being meaningless and liable to misconstruction, but we think the portion of the instruction objected to is, and would so be understood to be, a modification in appellant's interest. The jury doubtless understood the court to mean that, notwithstanding the failure of defendant company to comply with the terms of the ordinance, it would not be liable if any efficacious method other than the one prescribed by the ordinance had been adopted, and that the language was used with reference to the contention of the appellant that it rendered the street equally safe by substituting gravel for planks; the ordinance prescribing planks. We will notice the objection to the use of the words 'safe condition' in the discussion of a subsequent assignment.

Instruction No. 6 is as follows: 'The plaintiffs claim that the defendant negligently failed to comply with the terms of the ordinance which had been received in evidence in the following particulars: They claim that on May 2, 1901, at a point on Broadway which has been referred to by the witnesses, one or more of the defendant's street car rails were in such a condition that the tops of the rails were not flush with the surface of the street, but projected above the same sufficiently high to cause an obstruction to public travel, and also claimed that there were no planks laid along the rails at said point in the manner mentioned in the ordinance or at all; and they claim that the alleged absence of planks, and the alleged projection of the rails above the surface of the street, was caused by the negligent failure of the defendant to maintain its track and roadbed as required by said ordinance. And I instruct you that if you believe from the evidence that said track was on May 2, 1901 in the condition claimed by the plaintiffs, and believe that such condition constituted an obstruction of public travel, and also believe that it was by reason of said alleged dangerous condition of the track that the plaintiff Carrie Gray was, without negligence on her part, thrown from her carriage as claimed by her, and received the injuries complained of, then I instruct you that the plaintiffs are entitled to recover damages from the defendant.' It is contended that by the terms and tenor of this instruction the jury was authorized to render a verdict for respondents, as against appellant, if, without fault on the part of Mrs. Gray, she sustained injuries on appellant's tracks at a point where they were not planked in accordance with the literal wording of the ordinance. But the court could not have been understood to have meant to have subjected the defendant to an absolute liability in the case of a failure to use planks as required by the ordinance, for the condition...