Harvey v. Wight
| Decision Date | 10 March 1966 |
| Docket Number | No. 38244,38244 |
| Citation | 412 P.2d 335,68 Wn.2d 205 |
| Court | Washington Supreme Court |
| Parties | Larry HARVEY by his Guardian ad Litem, Clarence Harvey, Respondent, v. Bert WIGHT, David Wight and Jane Doe Wight, his wife, Appellants. |
Guttormsen, Scholfield, Willits & Ager, Frank D. Howard, Seattle, for appellants.
Joseph T. Pemberton, Bellingham, for respondent.
This is another host-guest case.
Six teen-agers were riding in a car which, while traveling at high speed, failed to negotiate a curve and was wrecked. This is an action on behalf of one of the occupants, for personal injuries sustained by him, against the driver of the car and the parents of the driver of the car who were the owners of the car. A verdict of $25,000 was reduced by certain stipulated damages, which had already been paid, to $24,201.35, and a judgment entered in that amount.
Aside from a claim that the damages were excessive and should be reduced, or a new trial granted, the only errors assigned are to instructions given or refused relating to gross negligence.
The case was tried prior to our recent decisions in Nist, Dole, and Hansen, 1 which appear to give the answer to most of the questions raised by the defendants' assignments of error.
One claimed error relating to instructions remains for consideration. The phrasing of the last sentence in instruction No. 7, to which the defendants assigned error, is not to be commended, but when that instruction is read with the other instructions given, it seems to us that it could not possibly have been prejudicial. It reads as follows:
A violation, if you find there was such a violation, of a statute governing the operation of a motor vehicle is negligence as a matter of law.
While the violation of a positive statute is negligence, such negligence will not render a defendant liable for damages unless such violation proximately contributed to or proximately caused the injury.
The foregoing instruction instruction Number 6 and the preceding portion of this Instruction Number 7 as to the ordinary standard of care required in the operation of a motor vehicle are given for the purpose of defining negligence in its usual meaning.
In this case the parties bear a special legal relationship to each other. The plaintiff was a guest in the car owned and operated by the defendants, who were the plaintiff's hosts. This relationship is defined by law and it is referred to as the host-guest relationship. The pertinent portions of this law in the State of Washington are as follows:
'No person transported by the owner or operator of a motor vehicle as an invited guest * * *, without payment for such transportation, shall have cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless the accident was * * * the result of said owner's or operator's gross negligence * * *, and unless the proof of the cause of action is corroborated by competent evidence or testimony independent of, or in addition to, the testimony of the parties to the action. * * *' 2
Whether or not a violation of a statute can be determined to be gross negligence is a question for you as jurors to decide. (Instruction No. 7)
In instruction No. 3 'gross negligence' was defined as the failure to exercise slight care. In instruction No. 5 the definition of the duty of a person driving an automobile upon the public highways of this state was given in the words of the statute. 3 In instruction No. 6, ordinary negligence was defined.
In instruction No. 7, the jury was told that if there was a violation of that statute, it constituted negligence as a matter of law; that negligence does not render a person liable for damages unless such negligence was a proximate cause of the injury sustained. Then, as suggested in the Nist, Dole, and Hansen cases, it was explained that negligence had been defined in the preceding instruction (6) and in the first two paragraphs of instruction No. 7 to clarify the distinction between 'negligence' in its usual meaning and the 'gross negligence' which a guest in a motor vehicle accident must establish to recover from his host; and then, in the final sentence, told the jury that they must determine whether a violation of the statute, which they had previously been told would be negligence, was also gross negligence.
Instruction No. 8 again told the jury that there could be no recovery by a guest in an automobile unless there was gross negligence by the host, as previously defined.
We will concede that the last sentence in instruction No. 7 might better have been phrased to say: that whether or not the conduct of the host-driver, which you may find constitutes a violation of the statute quoted to you in instruction No. 5, also constitutes gross negligence is for you to determine. However, there can be no question that the jury had to find gross negligence (which was properly defined) before they could bring in a verdict for the injured guest.
The final assignment of error relates to the excessiveness of the $25,000 verdict.
The doctor who performed the necessary surgery testified:
The findings were essentially the laceration, abrasions that we previously described, and this was explored beneath the cut at this time, and we found that there was a tear in the dense sort of an envelope that encases the skull, the outside surface of the skull, called the galea aponeurosis. This was...
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