Johnson v. Heitman

• Decision Date: 15 December 1915
• Docket Number: 12762.
• Citation: Johnson v. Heitman, 88 Wash. 595, 153 P. 331 (Wash. 1915)
• Parties: JOHNSON et al. v. HEITMAN et al.
• Court: Washington Supreme Court

153 P. 331

88 Wash. 595

JOHNSON et al. v. HEITMAN et al.

No. 12762.

Supreme Court of Washington

December 15, 1915

Department 1. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Action by Hannah Olivia Johnson and Frank Johnson against J. C Heitman and the Fidelity Rent & Collection Company. Judgment for defendants, and plaintiffs appeal. Reversed.

Bone & Wright and Gordon & Easterday, all of Tacoma, for appellants.

A. F Williams, of Seattle, for respondents.

ELLIS J.

Action by the widow and minor son of Frank E. Johnson, deceased, to recover damages for his death, which it is alleged was caused by the negligence of the defendants. The deceased while riding a motorcycle westerly along South Eleventh street in the city of Tacoma, was killed by a collision between the motorcycle and an automobile which was being driven by the defendant Heitman southerly along South I street. The automobile belonged to the defendant Fidelity Rent &amp Collection Company. The collision occurred at the intersection of the streets mentioned. In the complaint among other charges, it was averred that the collision was caused by the negligence of the defendant Heitman in driving on the left instead of the right hand side of I street, contrary to the provisions of a city ordinance. In the answer all of the allegations of negligence were denied, and an affirmative plea of contributory negligence was advanced. This was traversed by reply. Section 2 of the ordinance in question so far as material is as follows:

'All persons driving, operating or using a vehicle on any street in the city of Tacoma shall conform to and observe the following rules and regulations:

'1. All vehicles, except as hereinafter specified, shall be driven on the right-hand side of the street.

'2. A vehicle meeting another shall pass to the right. * * *

'6. A vehicle turning into another street to the right shall turn the corner as near the right-hand curb as practicable.

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'7. A vehicle turning into another street to the left shall turn around the intersection of the two streets.

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'8. A vehicle crossing from one side of a street to the other shall do so by turning to the left so as to head in the same general direction of the traffic on that side of the street toward which the crossing is made, except upon streets where the grade exceeds five per cent.'

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We shall not discuss the evidence further than to say that it presents a sharp conflict as to whether or not, at the time of the collision, the automobile was being driven upon the left-hand, instead of the right-hand, side of the street. If it was being so driven, there was neither evidence nor offer of evidence tending to excuse or account for the fact. The jury returned a verdict for the defendants. The plaintiffs moved for a new trial on all of the statutory grounds. The motion was overruled. From a judgment of dismissal entered upon the verdict, the plaintiffs appeal.

The only question requiring extended notice is presented by the appellants' exceptions to the court's instructions touching the alleged violation by the respondent Heitman of the above-quoted provisions of the ordinance.

This court is definitely committed to the rule that 'a thing which is done in violation of positive law is in itself negligence,' in the absence of pleading and proof of such peculiar facts as would tend to justify the violation. Engelker v. Seattle Electric Co., 50 Wash. 196, 96 P. 1039; Wilson v. Puget Sound Electric Ry., 52 Wash. 522, 101 P. 50, 132 Am. St. Rep. 1044; Hillebrant v. Manz, 71 Wash. 250, 128 P. 892; Anderson v. Kinnear, 80 Wash. 638, 141 P. 1151.

In consonance with that rule this court, in common with others, has repeatedly held that, in the absence of evidence of circumstances tending to excuse by making such a course reasonably necessary, a failure to observe the law of the road, resulting in injury, is negligence as a matter of law. It was so determined by this court sitting en banc in the recent case of Lloyd v. Calhoun, 82 Wash. 35, 143 P. 458, in the opinion on rehearing, wherein we adopted the views expressed in the dissenting opinion on the original hearing in the same case. Lloyd v. Calhoun, 78 Wash. 445, 139 P. 231. See, also, Hiscock v. Phinney, 81 Wash. 117, 142 P. 461; Moy Quon v. Furuya Co., 81 Wash. 526, 143 P. 99; Ballard v. Collins, 63 Wash. 493, 115 P. 1050; Irwin v. Judge, 81 Conn. 492, 71 A. 572; Brooks v. Hart, 14 N.H. 307; Brember v. Jones, 67 N.H. 374, 30 A. 411, 26 L. R. A. 408; Fenn v. Clark, 11 Cal.App. 79, 103 P. 944.

It may be assumed that turning to the left to avoid an obstruction or a part of the roadway dangerously out of repair, or an imminent collision on the right-hand side of the way, or any other fact reasonably tending to show a necessary choice of hazards in an emergency, would be sufficient on appropriate averment and evidence to take the question of negligence to the jury. The following decisions, cited by respondent in this connection, when confined to their facts, must be construed as merely recognizing this qualification: Sheffield v. Union Oil Co., 82 Wash. 386, 144 P. 529; Mickelson v. Fischer, 81 Wash. 423, 142 P. 1160; Reynolds v. P. Car Co., 75 Wash. 1, 134 P. 512; Segerstrom v. Lawrence, 64 Wash. 245, 116 P. 876. But no such case is presented here. The respondents, neither by pleading nor proof, sought to excuse the driving of the automobile on the left-hand side of the street, but were content to rest upon a denial that it was so driven. Whether it was so driven and whether that fact was the proximate or efficient cause of the injury made the sum of the issues touching this phase of the question of respondents' negligence. Among many others, the court gave the following, instructions, which for convenience we designate as 1, 2, and 3:

'(1) You are instructed that by an ordinance of the city of Tacoma, having the force of law, and in effect on the 17th day of May, 1914, it is provided that 'all vehicles except as hereinafter specified, shall be driven on the right-hand side of the street,' and it is conceded that automobiles and motorcycles fall within the purview of this provision.

'(2) You are instructed that if you find from the evidence that the collision referred to in the pleadings resulted from the fact, if you find it to be a fact, that the defendant Heitman was, at that time, driving an automobile upon the left instead of the right hand side of the street, and that his driving said automobile upon the left instead of the right hand side of said street was the direct

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