Hellan v. Supply Laundry Co.

• Citation: 163 P. 9,94 Wash. 683
• Decision Date: 16 February 1917
• Docket Number: 13639.
• Court: United States State Supreme Court of Washington
• Parties: HELLAN v. SUPPLY LAUNDRY CO.

163 P. 9

94 Wash. 683

HELLAN v. SUPPLY LAUNDRY CO.

No. 13639.

Supreme Court of Washington

February 16, 1917

Department 1. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by A. O. Hellan against the Supply Laundry Company. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Geo. McKay and Henry S. Noon, both of Seattle, for appellant.

James B. Murphy and Robert C. Saunders, both of Seattle, for respondent.

ELLIS C.J.

This is an appeal from a judgment dismissing an action for personal injuries.

Stewart street in the city of Seattle runs east and west. Seventh avenue runs north and south, crossing Stewart street at right angles. In the complaint it is alleged that, while plaintiff was crossing Seventh avenue on the south side of Stewart street exercising care and caution for his own safety defendant J. B. Corkum caressly, negligently, unlawfully, and in willful violation of the city ordinances drove his automobile east along Stewart street at an excessive speed without sounding any horn or whistle or giving other warning and carelessly and negligently struck and injured plaintiff. It is further alleged that at the time of the accident an auto delivery truck of defendant Supply Laundry Company, driven by one of its servants, running west on Stewart street at an unlawful and dangerous rate of speed in violation of the city ordinances, at the intersection of the two streets mentioned, turned south onto Seventh avenue going diagonally across the street making a rapid, short, sharp, unlawful turn in violation of the city ordinances, intersected the path of the Corkum automobile so that Corkum was compelled to turn suddenly south on Seventh avenue to avoid a collision with the delivery truck, and thereby struck plaintiff, and that the negligence of defendant Supply Laundry Company, through its agent and servant, 'accentuated the negligence of said Corkum and directly contributed to and caused the injury to the plaintiff.'

The substance of counsel's opening statement was as follows: That plaintiff's evidence would show that he was going west on the south side of Stewart street; that when he reached Seventh avenue the Corkum automobile was going east on the south side of Stewart street, and the laundry truck was going west on the north side of Stewart street; that when he started across Seventh avenue the laundry truck made a sudden turn to the south going to the east, the left and wrong side of the center of the street intersection cutting the corner, and taking the east, the wrong side, of the avenue; that in executing this movement, in violation of the law and city ordinances, the truck made a line for the other automobile; and that Corkum in an effort to escape a collision put on his brakes, turned quickly to the south, and in so doing struck plaintiff. It is admitted that since the commencement of the action Corkum has died, and thereafter the cause was prosecuted against the Supply Laundry Company alone.

At the close of the above statement, counsel for defendant moved upon that statement that the jury be discharged and that judgment be entered for defendant. Granting the motion, the court said:

'I want the record to show that on the complaint and from the statement that you [Mr. Judd, plaintiff's then counsel] made it is impossible to state a cause of action which would sustain a judgment.'

The action was dismissed 'with prejudice to the commencement of any other action.' Plaintiff appealed.

In support of the court's action, it is urged that, under the facts pleaded and stated by counsel, Corkum's negligence was, as a matter of law, the proximate cause of the injury, while that of respondent's driver was a mere condition. The most usual definition of 'proximate cause' found in the books is either the following or some of its paraphrases:

'The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new, independent cause, produces that event, and without which that event would not have occurred.' 1 Shearman & Redfield, Negligence (6th Ed.) § 26; Cooley on Torts (3d Ed.) p. 124.

There may be more than one proximate cause for the same injury. The negligence of different persons, though otherwise independent, may concur in producing the same injury. In such a case, all are liable. They may be held either jointly or severally. The negligence of one is no excuse for that of another.

'If the damage has resulted directly from concurrent wrongful acts or neglects of two persons, each of these acts may be counted on as the wrongful cause, and the parties held responsible, either jointly or severally, for the injury. It is well settled by the adjudged cases that when an injury is the result of the combined negligence of the defendant and the negligent or wrongful act of a third person, for whose act neither the plaintiff nor the defendant is responsible, the defendant is liable, when the injury would not have happened except for his negligence. Thus, if two persons wrongfully block up a street, so that one is injured in attempting to pass them, neither of the culpable parties can excuse himself by showing the wrong of the other, for the injury is a natural and proximate result of his own act under the then existing circumstances, and to excuse either would be to deny all remedy in the case of plain and palpable injury.' Cooley on Torts (3d Ed.) pp. 119, 120, 121, 122, and 123.

See, also, Shearman & Redfield, Negligence (6th Ed.) § 31.

The question of proximate cause is a mixed question of law and fact. It is usually a question for the jury. It is only where the facts are undisputed, and the inferences to be drawn from them are plain and incapable of reasonable doubt or difference of opinion, that it may become a question of law for the court. Cooley on Torts (3d Ed.) p. 111; 1 Shearman & Redfield, Negligence (6th Ed.) § 55.

In considering the application of these principles to the case here presented, we must, of course, assume as true all of the facts stated in the complaint, except in so far as they are contradicted or modified by the opening statement of appellant's counsel. In drawing the complaint it seems plain that the pleader was attempting to state the full facts as a cause of action for concurrent negligence on the part of both Corkum and respondent here. He was seeking a recovery against both. But Corkum having died, counsel, in his statement outlining the evidence which he would offer, laid little...