Horney v. Giering

• Decision Date: 16 January 1925
• Docket Number: 18889.
• Citation: 231 P. 958,132 Wash. 555
• Parties: HORNEY et al. v. GIERING et al.
• Court: Washington Supreme Court

231 P. 958

132 Wash. 555

HORNEY et al. v. GIERING et al.

No. 18889.

Supreme Court of Washington

January 16, 1925

Department 2.

Appeal from Superior Court, King County; Hall, Judge.

Action by Fannie Horney and others against H. E. Giering and another.From a judgment for plaintiffs and an order overruling motions for judgment notwithstanding the verdict and for new trial, defendants appeal.Reversed and remanded.

Ralph S. Pierce, of Seattle, for appellants.

Elias A. Wright and Sam A. Wright, both of Seattle, for respondents.

MAIN J.

The plaintiff in this action sought recovery of damages for personal injuries.The defendants answered with certain denials and admissions and alleged affirmatively that the plaintiff was guilty of contributory negligence.The cause was tried to a jury and resulted in a verdict in favor of the plaintiff in the sum of $1,500.At the conclusion of the evidence the defendants made a motion for a directed verdict and after the verdict was returned moved for judgment notwithstanding the same and also for a new trial.These motions were overruled, and judgment was entered upon the verdict against both defendants, from which they appeal.

The appellantH. E. Giering was the owner for a for-hire automobile which was driven by one James Seth.The other appellant, the Mutual Union Insurance Company, was joined as a party because it was surety upon the statutory bond.For convenience of reference hereinafter the case will be treated as though Giering was the only party against whom the action was brought.

The accident for which recovery was sought happened at or near the intersection of Yesler Way and First avenue in the city of Seattle.Yesler Way runs, generally speaking, in an easterly and westerly direction, and First avenue north and south.On the day of the accident, the respondent left her work and walked westerly on the south side of Yesler Way intending to take a street car at what is called the northeast corner of First avenue and Yesler Way.Just as she attempted to cross Yesler Way, the automobile driven by Seth was backing into the curb in order to park there.As she stepped into the street she was struck by the back of the automobile and fell upon the pavement, breaking her left arm.The respondent claims and testified that in attempting to cross she did so at or near the intersection and at the place where pedestrians at that point ordinarily cross.The witnesses for the appellant testified that she attempted to cross some considerable distance east of the intersection, and if the accident happened where they claim she would be crossing between intersections.

The appellant assigns error in that the court overruled his motion for a directed verdict, for judgment notwithstanding the verdict, and for a new trial, and also makes a number of assignments of error as to the instructions given and the instructions refused.

Speaking in his brief with reference to the assignments of error in overruling the motions, he says that their merit, as well as the merit of the majority of the exceptions to the instructions, depends upon the facts established by the evidence, and adds that three points were in controversy: (1) Did the collision occur at or between the intersections?(2) Did the driver of the car comply with the traffic provisions requiring the sounding of a warning before backing and the exercise of unceasing vigilance?And (3) did the driver exercise ordinary care under the circumstances?

Upon all of these questions there was a conflict in the evidence and their determination therefore was for the jury.There was substantial evidence which would sustain the finding of the jury upon each of them.It is argued, however, that under the respondent's own testimony, when she attempted to cross she was still a few feet east of the intersection; but, even though this be true, it would not prevent a recovery.Taking into consideration the peculiar situation at this intersection, it was not necessary that she be exactly upon the crossing to be within the rule of an ordinance giving pedestrians the right of way at street crossings.Yanase v. Seattle Taxicab & Transfer Co.,91 Wash. 415, 157 P. 1076.

The more important questions in the case are those with reference to two instructions given and especially to one of them.The appellant requested an instruction as follows:

'In determining whether or not the plaintiff exercised reasonable care under all of the circumstances established by the evidence, you should take into consideration the physical infirmities, if any, from which the plaintiff was suffering at the time of the accident.The law requires that one suffering from physical infirmities should exercise a degree of care commensurate with such infirmities. * * *'

The court gave this instruction, eliminating therefrom the italicized portion.It would not have been reversible error at least to have given the instruction as requested, and it was not error to refuse it, as the clause which the court eliminated is not quite an accurate statement.There is much discussion in the books relative to the care or caution which a person with defective eyesight or other infirmity must exercise in crossing streets.The respondent's hearing in this case was somewhat defective, and that is what put this question, raised by the refusal to give the instruction, into the case.The best discussion of the question will be found in Keith v. Worcester, etc., Street Railway,196 Mass. 478, 82 N.E. 680, 14 L. R. A. (N. S.) 648.It was there said:

'The standard of care established by the law is what the ordinarily prudent and cautious person would do to protect himself under given conditions.There is no higher or different standard for one who is aged, feeble, blind, halt deaf or otherwise impaired in capacity, than for one in perfect physical condition.It has frequently, in recent as well as earlier cases, been said, in referring to one under some impediment, that greater caution or increased circumspection may be required in view of these adverse conditions.See, for example, Winn v. Lowell, 1 Allen, 177;Hall v. West End Street Railway,168 Mass. 461;Hilborn v. Boston & Northern Street Railway,191 Mass. 14;Vecchioni v. New York Central & Hudson River Railroad,191 Mass. 9;

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