Hartley v. Lasater

• Decision Date: 18 May 1917
• Docket Number: 13823.
• Parties: HARTLEY v. LASATER et ux.
• Court: Washington Supreme Court

165 P. 106

96 Wash. 407

HARTLEY v. LASATER et ux.

No. 13823.

Supreme Court of Washington

May 18, 1917

Department 1. Appeal from Superior Court, Walla Walla County; Edward C Mills, Judge.

Action by Roy Hartley against Harry Lasater and wife. Judgment for plaintiff, and defendants appeal. Reversed and remanded for new trial.

Will H Fouts, of Asotin, and Reynolds & Bond and Gose & Crowe, all of Walla Walla, for appellants.

Sharpstein Pedigo, Smith & Sharpstein, of Walla Walla, for respondent.

CHADWICK J.

This action was brought to recover damages for injuries sustained in an accident upon a highway. Respondent's case shows that he was riding south on a motorcycle. Appellants were riding in an automobile in the same direction, and a short distance behind. Respondent was just to the right of the center of the road. Appellants were to the left of the center. The presence of appellants was unknown to respondent, who suddenly cut across the road in front of their machine. Respondent alleges that he was going at about twelve miles an hour. It is alleged, and circumstances are relied on to prove, that appellants were going at an excessive rate of speed. It was respondent's intention to leave the main highway, and go onto a road intersecting at an angle of about 25 degrees. The machines collided at the intersection of the roads. All parties suffered some shock and injury. Respondent brought this suit to recover damages. Each party alleges the fault to be in the other. From a verdict and judgment in favor of respondent, appellants have appealed.

Many errors are assigned. Most of them go directly to, or are predicated upon, the contention that the facts proven are insufficient to sustain a verdict and judgment, or that they conclusively show negligence on the part of respondent, and that such negligence was the proximate cause of the injury.

Inasmuch as we have concluded to send the case back for a new trial, we feel that discussion, further than to say that we think the case was for the jury, is unnecessary. Aside from all other questions, if appellants were driving their automobile at an excessive rate of speed, and such was the proximate cause of the accident, respondent would have a right to recover.

The court instructed the jury upon the doctrine of the last clear chance as follows:

'If you find that the plaintiff had negligently placed himself in a perilous situation, and that the driver of the defendants' automobile, by the exercise of reasonable care, could have seen and should have seen the perilous situation of the plaintiff in time to have avoided injuring him, by the exercise of reasonable care on the part of the driver of the automobile, then such negligence on the part of the plaintiff will not defeat his right to recover, if the negligence of the plaintiff had terminated or culminated in a situation of peril from which the exercise of ordinary care on his part would not thereafter extricate him.

'But if you find that the plaintiff negligently placed himself in a dangerous situation, and that the driver of the automobile could not, and should not, in the exercise of reasonable care, have seen his perilous situation in time to have avoided injuring him, or if you find that the plaintiff's negligence, if any, had not terminated or culminated in a situation of peril from which the exercise of reasonable care on his part would not thereafter extricate him, but that he could have, by the exercise of ordinary care, extricated himself from the perilous situation, but failed to exercise such care, then the plaintiff cannot recover.'

In the abstract, no objection could be urged to these instructions; but we think there is no testimony to sustain them. It is true that appellants knew of respondent's presence and position; but it does not follow that they are to be charged with a knowledge of his intent, suddenly, and without warning, to turn across the path of their automobile. We have given attention to the whole evidence and are convinced that the accident happened so quickly that there was neither time nor opportunity for appellants to act upon the last clear chance. Last clear chance implies thought, appreciation, mental direction, and the lapse of sufficient time to effectually act upon the impulse to save another from injury, or the proof of circumstances which will put the one charged to implied notice of the situation.

There was no duty upon appellants to slow down, or to take such care as the doctrine of the last clear chance demands, until they were put to the hazard of choice by some act of respondent. When respondent changed his position, he relieved appellants, unless the facts would warrant the court and jury in saying that there was sufficient time between his act and the impact for appellants to realize his peril and to avoid it. To invoke the doctrine of the last clear chance, we must grant the negligence of respondent, and find that his negligence 'had terminated or culminated in a situation of peril from which the exercise of ordinary care on his part would not thereafter extricate him'; that appellants knew and appreciated his danger and could, in the exercise of reasonable care have avoided injuring him. A mere statement of the rule reveals its inapplicability to a case where the contributory negligence began and culminated without the lapse of appreciable time. The doctrine is not applied where the negligence is concurrent. Scharf v. Spokane & Inland Empire R. Co., 92 Wash. 561, 159 P. 797.

'The doctrine [last clear chance] is recognized in this state, but this case does not fall within its limits. That doctrine, speaking in a broad way, applies when one negligently gets himself into a dangerous situation, or a trap, as it were, from which he cannot extricate himself, and, being there, another negligently runs upon, collides with, or in some other manner injures him. It does not apply when, as in this case, the injured party's negligence is progressive, and actively continues up to the point of collision. In such case, the negligence of the other party is not subsequent to and independent of the injured party's contributory negligence. It is contemporaneous with it to the last instant. It operates to produce the result in connection with the other negligence, and not independently of it.' Moran v. Smith, 114 Me. 55, 95 A. 272, 273.

Whether an instruction upon the last clear chance is proper to be given is a matter of law for the court. Dotta v. Northern P. R. Co., 36 Wash. 506, 79 P. 32.

Although a new branch of the law, it is held as frequently as the cases arise that the doctrine of the last clear chance is applicable in actions brought to recover for injuries caused by the negligent operation of automobiles....