Hughey v. Winthrop Motor Co.
| Decision Date | 10 January 1963 |
| Docket Number | No. 36053,36053 |
| Citation | 377 P.2d 640,61 Wn.2d 227 |
| Court | Washington Supreme Court |
| Parties | Harry HUGHEY and Minnesota Hughey, husband and wife, Appellants, v. WINTHROP MOTOR COMPANY, a corporation, Respondent. |
Albert, Andrews, Worswick & Tuell, Tacoma, for appellants.
Guttormsen, Scholfield, Willits & Ager, Seattle, for respondent.
A jury returned a verdict for defendant. Plaintiffs appeal from an order dismissing their action with prejudice.
Plaintiffs, Mr. and Mrs. Hughey, drove their automobile into defendant's garage for minor repairs. Mrs. Hughey alighted and walked across the 'dark hardwood floor' to the waiting room.
When the repairs had been completed, Mr. Hughey crossed the garage floor, tapped on the window of the waiting room, and motioned to his wife to join him.
Mrs. Hughey left the waiting room. She testified that she wore 'just common-sense shoes, just ordinary walking shoes', and did not notice anything on the floor. Other witnesses testified that she walked in a normal manner.
She further stated:
'* * * I think I had gone probably * * * about seven or eight feet from the door when I slipped suddenly.'
There is evidence that Mrs. Hughey's dress had a large smudge on its after her fall, and that the smudge was grease.
The fall broke her hip.
Defendant pleaded contributory negligence as an affirmative defense. At the end of the evidence, plaintiffs moved to strike the defense of contributory negligence. The motion was denied. The court's instruction on contributory negligence contained the following:
'* * * plaintiff still is not entitled to recover damages if either plaintiff was negligent and that negligence was a proximate cause of plaintiff's injuries.' (Italics ours.)
Plaintiffs' first two assignments of error are directed to the court's refusal to strike the affirmative defense of contributory negligence and to the court's instruction on contributory negligence.
Perhaps we over-simplify defendant's argument in support of the contributory negligence instruction, but it appears to be this: (1) '* * * all persons at all times and under all circumstances have an affirmative duty to exercise reasonable care for their own safety'; (2) Mrs. Hughey fell while walking across defendant's garage floor; (3) therefore, it becomes a question of fact for the jury to determine whether she was exercising reasonable care for her own safety and defendant was entitled to an instruction on contributory negligence. 1
We do not agree because defendant's syllogism would require an instruction on contributory negligence in practically every negligence case.
'Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, co-operating with the negligence of the defendant in bringing about the plaintiff's harm.' Restatement, Torts § 463, p. 1227.
Contributory negligence is an affirmative defense and the burden of proving it rests on the defendant. If there is no evidence of contributory negligence, it is error to submit the issue to the jury. Schneider v. Midwest Coast Transport, Inc., 51 Wash.2d 673, 675, 321 P.2d 260 (1958); Jackson v. Seattle, 15 Wash.2d 505, 512, 131 P.2d 172 (1942); Farrow v. Ostrom, 10 Wash.2d 666, 667, 117 P.2d 963 (1941). In this respect, it is analogous to the 'unavoidable accident' instruction. See Cooper v. Pay-N-Save Drugs, Inc., 59 Wash.2d 829, 836, 371 P.2d 43 (1962).
In Jackson, supra, the trial court gave an instruction on contributory negligence. This court reversed a judgment for defendant, saying,
'* * * That issue [contributory negligence] should not have been submitted to the jury unless there was substantial evidence that appellant's own negligence proximately contributed to her injury or evidence from which such negligence on her part could reasonably be inferred. * * *' (p. 512, 131 P.2d p. 176)
Defendant has not pointed out, and our review of the record has failed to disclose, a single evidentiary fact or circumstance which would support a conclusion that Mrs. Hughey's conduct fell below the standard to which she should have conformed for her own protection.
Since it is error to submit to the jury an issue where there is not substantial testimony on which to base an instruction (Burge v. Anderson, ...
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Langston v. Northwest Alloys, Inc., No. 23916-1-III (Wash. App. 3/22/2007)
...to provide it. That issue was addressed in the section examining the motion for CR 50(a) judgment. See Hughey v. Winthrop Motor Co., 61 Wn.2d 227, 229-30, 377 P.2d 640 (1963). 4. The jury instruction in Falk read: "'A product manufacturer is subject to liability to a claimant if the claiman......
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Baltazar v. Paradise, 73639-6-I
...71 Wn.2d 743, 744, 431 P.2d 166 (1967). 43. Lowman v. Wilbur, 178 Wn.2d 165, 169, 309 P.3d 387 (2013). 44. Hughey v. Winthrop Motor Co., 61 Wn.2d 227, 229, 377 P.2d 640 (1963). 45. Here, it is likely the trial court meant to say "the same as" rather than "different than." 46. Amend v. Bell,......
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Baltazar v. Paradise, 73639-6-I
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...to submit to the jury an instruction when there is not substantial evidence upon which to base the instruction. Hughey v. Winthrop Motor Co., 61 Wash.2d 227, 377 P.2d 640 (1963), and cases The trial court, in its memorandum opinion denying a new trial, said: 'In my opinion loss of services ......