Herndon v. City of Seattle

• Decision Date: 31 October 1941
• Docket Number: 28453.
• Citation: 11 Wn.2d 88,118 P.2d 421
• Parties: HERNDON v. CITY OF SEATTLE.
• Court: Washington Supreme Court

118 P.2d 421

11 Wn.2d 88

HERNDON v. CITY OF SEATTLE.

No. 28453.

Supreme Court of Washington

October 31, 1941

Department 1.

Action by Mabel Herndon against the City of Seattle for injuries sustained by plaintiff when automobile in which she was riding collided with a street car. From an order granting defendant's motion for a new trial, after verdict had been entered in favor of plaintiff, and failure of trial court to enter judgment on the verdict, the plaintiff appeals.

Reversed and remanded, with direction.

Appeal from Superior Court, King County; James B Kinne, Judge.

Sam L Levinson and Jay Friedman, both of Seattle, for appellant.

A. C. Van Soelen and C. C. McCullough, both of Seattle, for respondent.

MILLARD Justice.

An automobile, proceeding west on Seneca street in the city of Seattle, September 22, 1940, collided within the intersection of that street and Second avenue with a streetcar proceeding south on Second avenue. As a result of that collision plaintiff, a guest of the operator of the automobile, sustained personal injuries. She instituted this action to recover against the city of Seattle because of those injuries. Trial of the cause to the court sitting with a jury resulted in verdict in favor of plaintiff. Defendant's motion for judgment notwithstanding the verdict was denied. On the ground, in the light of Palmer Investment Corporation v. Seattle, 161 Wash. 460, 297 P. 783, that instructions Nos. 7 and 9 erroneously charged the jury respecting the relative duties of defendant's operator and the driver of the automobile, defendant's motion for new trial was granted. The trial court stated additional grounds for granting defendant's motion for new trial were error in the giving of instructions Nos. 10 and 11, and misconduct of a juror in going to the scene of the accident. The court stated that if the juror's misconduct had been the only error committed he would be hesitant in holding it sufficient to grant a new trial. The trial court also stated that while there was some inconsistency between instructions Nos. 10 and 11, that might not be so seriously considered by the court were it not for the error in giving instructions Nos. 7 and 9. From the order granting a new trial, and failure of the court to enter judgment on the verdict, plaintiff appeals.

It is unnecessary to detail the evidence of which there was sufficient, respondent so concedes, to take to the jury the question of negligence.

By instruction No. 14, the court charged the jury as follows:

'You are instructed that on the date of the accident in question there was in full force and effect Ordinance No. 68700, Section 72, reading, in part, as follows:

"Street railway cars shall be entitled to the track and to the right-of-way thereon at all times. * * *

"It shall be unlawful to fail to yield the right-of-way as in this section provided.'

'In this connection, you are further instructed as follows:

'(a) All rights of way are relative, and the duty to avoid accidents or collisions at street intersections rests upon both the driver of an automobile and the operator of a streetcar.

'(b) The primary duty, however, of avoiding a collision between a streetcar and an automobile rests upon the driver of the automobile by reason of the ordinance just read you, which duty he must perform with reasonable regard to the maintenance of a fair margin of safety at all times.

'(c) If a streetcar and an automobile collide within an intersection, then the driver of the automobile has failed to accord to the streetcar the right of way to which, by ordinance, it is entitled, unless the driver of such automobile assumes and meets the burden of producing evidence that the operator of the streetcar was wrongfully, negligently or unlawfully operating his car as would deceive a reasonably prudent automobile driver and warrant him in going forward upon the assumption that he has the right to proceed.'

By instruction No. 15 the jury was charged: 'You are instructed that as a matter of law the motorman of a streetcar is entitled to assume that persons using the street upon which the streetcar is being operated will use ordinary care for their own safety and that the motorman has the right to act upon such assumption. It is not necessary for him to stop or attempt to stop his car until he sees, or in the exercise of reasonable care should see, that another person or his property is in apparent danger. While the right to use the street is a joint right of the whole public, streetcars have the right of way over other vehicles crossing the defendant's streetcar tracks, and the motorman of a streetcar has the right, under the law, to rely upon and act in accordance with this rule.' In another instruction the jury was charged that if it found from a preponderance of the evidence that the collision was proximately caused solely by negligence of the driver of the automobile its verdict should be in favor of the respondent and against the appellant.

By instruction No. 7, the jury was charged that the operator of an automobile approaching streetcar tracks and crossing the same is entitled to assume that a streetcar will be moved at a reasonable rate of speed by the motorman and that the motorman is keeping a reasonable lookout ahead and is exercising such reasonable care in the operation of the streetcar as is commensurate with the situation at such point, having due regard to the general traffic and the probable danger of a collision unless the driver of an automobile in the exercise of reasonable care would determine otherwise. The court further charged the jury by that instruction that it was not necessarily negligent for the automobilist to endeavor to cross over a streetcar track at a crossing as a streetcar was approaching if, under all of the circumstances, a reasonably careful driver could justifiably believe that he could pass over in safety, relying upon the duty that both he, the automobilist, and those in charge of the streetcar must act with reasonable regard to the rights of others. The court charged the jury by instruction No. 8 as follows:

'You are instructed that it devolved upon the operator of the defendant's streetcar in question to operate the same at a rate of speed which was under all of the circumstances reasonable and careful, taking into consideration the conditions existing at the point of operation and the amount and character of the traffic.

'If you find from the preponderance of the evidence in this case that at and immediately prior to the time of the collision herein the defendant's streetcar was being driven at a rate of speed which was not reasonably careful and prudent under all of the circumstances, then the defendant has been guilty of negligence in that respect, and if such negligence was one of the proximate causes of plaintiff's injuries, then the plaintiff is entitled to recover such damages as you find she has sustained.'

Instruction No. 9 reads as follows:

'While the ordinance of the City of Seattle in force and effect at the time of the collision herein gave a streetcar operated by the defendant the right of way over other vehicles crossing the defendant's streetcar tracks, it would be incumbent upon the defendant or the operators of its streetcar, regardless of the fact that the right of way was so given them as aforesaid, to exercise reasonable care in the operation of said streetcars.

'If, therefore, you find in this case by a preponderance of the evidence that the defendant's streetcar was not at and immediately prior to the time of the collision herein being operated in a careful and prudent manner under all of the circumstances, then the defendant would be guilty of negligence, regardless of the fact that its streetcar had the right of way, and if such negligence was the proximate cause of the plaintiff's injuries, then the defendant is liable for such damages as the plaintiff has sustained.'

Instructions Nos. 10 and 11 read as follows:

'You are instructed that if the plaintiff is injured as the result of the joint negligence of the driver of the automobile, in which she is riding as a guest, and the operator of a streetcar, then she has a right to maintain an action against either or both of the persons whose combined acts of negligence caused her injury. The standard of care to be applied to each of said persons, however, will be based upon the relationship between the plaintiff and the person causing her injury. In the case of the driver, she must prove wilful negligence Before she can recover, and proof of ordinary negligence will sustain a recovery on her part against the defendant City of Seattle. The law of this state does not recognize comparative negligence and the division of damages. If the plaintiff establishes negligence within the degree required against either of the persons causing her injuries, then she can recover for the full amount of her damages against such person.'

'I instruct you that when the negligent acts of two or more persons are combined to proximately cause an injury to a third person, each of said persons is responsible to the person injured for the whole damage which may result from the joint acts of negligence, and a person so injured may maintain an action against either or both of the persons causing his injury for the full amount of the injury. This is true even though the standard of care toward the injured person may be different in the case of the two persons causing the injury.'

As stated above, the trial court was of the view that instructions Nos. 7 and 9 were erroneous in the light of our opinion in Palmer Investment Corporation v. Seattle, 161 Wash. 460, 297 P. 783.

Palmer Investment Corporation, supra, is distinguishable from the...