Jaquith v. Worden

• Decision Date: 06 May 1913
• Citation: 73 Wash. 349,132 P. 33
• Parties: JAQUITH v. WORDEN et al.
• Court: Washington Supreme Court

132 P. 33

73 Wash. 349

JAQUITH v. WORDEN et al.

Supreme Court of Washington

May 6, 1913

Department 1. Appeal from Superior Court, Pierce County.

Action by Mabel Jaquith against David A. Worden and others. From a judgment for plaintiff, defendant named and others appeal. Affirmed.

Hudson & Holt, Davis & Neal, Bates, Peer & Peterson, and Emil N Stenberg, all of Tacoma, for appellants.

Grant A. Dentler, of Tacoma, for respondent.

GOSE J.

The plaintiff was run down by an automobile owned by the defendant Worden and driven by the defendant Wade, who was then the agent and servant of Worden. She brought this action, alleging that she met her injury in consequence of the concurring negligent acts of all of the defendants. There was a verdict and judgment in her favor from which all the defendants except Floyd B. Murphy have appealed.

The facts, either admitted or not controverted, are these: The appellant Edward D. Murphy at the time of the accident lived on the west side of North Alder street, a street running north and south in the city of Tacoma, at or near the northwest corner of that street and North Twenty-Fifth street, which intersected it at right angles. North Alder street was paved, and a double-tracked electric street car line, known as the 'Point Defiance Line,' was operated upon it. The distance between the west rail of the west car track and the curb in front of Murphy's residence was about 15 feet. Late in the afternoon or early in the evening upon which the respondent was injured, an automobile owned by the appellant Murphy was left standing along the curb in front of his residence, without any light upon it. Between 7 and 7:30 o'clock in the evening on the 21st day of September, 1910, the Worden automobile, traveling south on the west side of Alder street and driven by Wade, struck the Murphy car, was deflected from its course, and ran down the respondent, who was upon the cement walk at the point of intersection of the two streets. She had just alighted from a north-bound car running on the west track, and had reached that point when she was run down. There was evidence which warranted the jury in finding, either that the appellant Murphy left his automobile in the street unlighted, intending that his son Floyd should use it, or that the former habitually used the street in front of his residence, in both the daytime and the nighttime, as a place to stand his unlighted machine, that his son Floyd knew that fact, and that if the latter left the machine there on the night in question, he followed a custom established and approved by the father. There was also testimony which would have justified the jury in concluding that it was dark when the respondent was injured.

The appellant Wade testified that his machine was moving at a speed of 6 or 8 miles an hour at the time he struck the Murphy car; that he did not see it until he 'hit it'; that he did not think he could have seen a person where the Murphy machine stood; that there was a street car at Twenty-Fifth street which had a 'very powerful head light,' which blinded him so that he 'could not see anything at all.' This was probably the car from which the respondent had alighted. Other witnesses said that Wade was driving his car 25 miles an hour. The Murphy machine was facing north. Wade further said that the right hub cap of his machine struck the front wheel of the Murphy machine; that the force of the impact threw him to the left side of his machine, causing him to touch the lever with his foot and accelerating the speed of his car.

Worden and Wade have joined in a brief. Murphy has filed a separate brief. We will first consider the appeal of Worden and Wade. In respect to them the court instructed the jury that negligence consists in the doing of an act, or a series of acts, without the exercise of reasonable care, or in doing an act, or acts, in violation of an express law or ordinance; that reasonable care is that degree of care that a reasonably careful and prudent person would use under similar circumstances; that if they should find from the evidence that the street at the point of the collision was generally traveled, Wade was bound to anticipate that persons and vehicles might be traveling thereon; that if they found from the evidence that he was blinded by the headlight of an approaching street car, they should determine in view of all the attending circumstances shown by the evidence whether it was his duty to stop his machine and not proceed until he could see the street and objects ahead, and if he failed to do so whether such failure was negligence.

The court further instructed at the request of these appellants:

'In order to find the defendants Wade and Worden liable you must find that not only did the car of Worden strike the car of Murphy and collide with the plaintiff as a result thereof, but you must also find that the handling and operation of the Worden car before or at the time of the accident, or immediately succeeding it, was negligent.'

The court also instructed:

'In determining whether the defendant Ralph Wade was guilty of negligence at the time the automobile he was then using collided with the automobile of defendant Edward D. Murphy, you may take into consideration the rate of speed he was then driving such automobile, the manner in which he was operating the same, whether he had proper and reasonable lights thereon to enable him to see objects that might and did come in the path and course he was traveling in time to avoid colliding with and hitting them, and whether he could see objects or obstructions ahead of him on account of any light that might be shining or thrown in his face, and whether he was driving such automobile at a faster rate of speed than he could bring said automobile to a standstill within the distance that he could plainly see objects and obstructions ahead of him, together with all other facts and circumstances shown by the evidence and testimony of this case.'

'If you find from a fair preponderance of the evidence in this case that the defendant Ralph Wade, at the time of the collision of the automobile he was using with the automobile of defendant Edward D. Murphy, was in charge of such automobile on a street in the city of Tacoma, and at a place on said street which was within a thickly settled portion of said city of Tacoma and was at the time and place driving such automobile at a rate of speed faster than 12 miles per hour, and that by reason thereof, and on account thereof, you further find that the plaintiff was injured because of such rate of speed being faster than 12 miles per hour at such a place, then you are instructed that the defendants David A. Worden and Ralph Wade would be liable for the consequences of such rate of speed at such a place.'

'No person driving or in charge of any automobile on any public street has a legal right to drive the same at any speed greater than is reasonable and proper, having regard to the traffic and use of the street by others, or so as to endanger the life and limb of any person; and if you find from a fair preponderance of the evidence in this case that the defendant Ralph Wade, at the time the automobile he was using collided with the automobile of defendant Edward D. Murphy, was driving the automobile in his charge at a speed greater than was reasonable and proper, having regard to the traffic and use of said street where he was then driving said automobile, by other persons and the public, or was then and at that place driving such automobile at such a rate of speed as to endanger the life and limb of any other person, and because of such rate of speed you further find that the plaintiff was injured, then you are instructed that the defendants David A. Worden and Ralph Wade would be liable for the consequences of such rate of speed at such time and place.'

The last two instructions embody the provisions of the statute. Rem. & Bal. Code, §§ 5571, 5572.

The court also instructed:

'If you believe from a fair preponderance of the evidence in this case that, at the time of the collision between the two automobiles, the defendant Ralph Wade was driving the automobile in his control in a reasonably careful manner and at a reasonable and lawful rate of speed, and with proper and sufficient lights thereon, and that, by reason of the circumstances existing at the place of the collision, he did not see the automobile of the defendant Murphy, and that he should not be charged with the consequences, under the circumstances, of not having seen the automobile, and that after the collision between the two automobiles, the said Ralph Wade was thrown from his seat, and as a result of his being so thrown his foot, or other part of his body, came in contact with the lever that controls the speed of the automobile without design, purpose, or fault on his part, and as a result thereof the automobile in which he was riding suddenly acquired a greater speed and was beyond his control, and as a result thereof ran over the plaintiff, then you will find a verdict in favor of the defendants Worden and Wade.'

The appellant Worden testified that he was not present when the accident happened. A witness for the respondent testified that Worden told him that, at the time Wade crossed the street car track where it curves at the north end of the block, upon which the accident happened, he saw an approaching car and increased his speed. These appellants then sought to show that in the same conversation he said that, after crossing the track, Wade slowed down. This testimony was rejected, and error is assigned to the ruling. The contention is that, where a part of a conversation is put in evidence, the adverse party is entitled to prove the remainder...