Kahaley v. Frye & Bruhn
| Decision Date | 01 February 1911 |
| Citation | 62 Wash. 43,113 P. 247 |
| Court | Washington Supreme Court |
| Parties | KAHALEY v. FRYE & BRUHN, Incorporated. |
Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.
Action by J. L. Kahaley against Frye & Bruhn, Incorporated. Judgment for plaintiff, and defendant appeals. Affirmed.
Roberts Battle, Hulbert & Tennant, for appellant.
Chas F. Munday and Walter S. Fulton, for respondent.
About 6 o'clock on the evening of the 16th day of January, 1909 plaintiff, a pedestrian, while crossing Columbia street at First avenue, in the city of Seattle, was struck by a team of runaway horses, and hurled some distance onto a brick pile. He received injuries which the jury found to be permanent, and compensated in damages. Plaintiff had stepped off the sidewalk before he saw the team, which was then about 15 feet away, and was caught before he could recover himself or retreat. The team was hitched to a delivery wagon, and was owned and used by defendant to deliver meats from the Fulton market, then, and so far as the record shows now, operated by it. The market fronted on Second avenue, with a rear door on the alleyway between First and Second avenues. The driver, John Weston, had left the team at the rear door, and gone into the shop to make up his load, which was arranged with reference to convenience and certainty of delivery, and was a task which took some time. While he was thus engaged, the team ran away. Turning west on Columbia street, it went at great speed until brought to a standstill a block or two beyond First avenue. A fact which will enter into the legal conclusions hereafter to be noticed and proper to be stated here is that it was provided by the ordinances of the city that it was unlawful for any person to leave any horse or other animal attached to any vehicle or conveyance in any public or uninclosed place without securely fastening or guarding it. Revised Ordinances, § 30, p. 192; section 50, p. 214. In compliance with these requirements and following a general custom existing in Seattle, the rig was equipped with a 40-pound hitching weight. This was attached to a 1 1/2-inch strap leading along the wagon tongue where it divided, and thence ran to the bits of each horse. A hole in the front of the wagon bed furnished a means of lowering the weight to the ground. The driver says that, when he left the team, the weight was down and the brake was set. There is no showing that the team was fractious or nervous. If anything, the contrary is shown. There is no showing that there were any unusual noises, or anything to disturb the quiet of the team, or that the driver or defendant had any cause to anticipate any alarm whatever. Nor is it seriously contended that the ordinances of the city were not complied with, so far as the manner provided for hitching the team is concerned. Whether it was employed on this occasion is the question that vexes us. The case was tried before a jury, and from a judgment entered upon a verdict awarding damages in the sum of $2,000 this appeal is prosecuted.
It is the theory of the appellant that no presumption of negligence arises from the mere fact that the team ran away; that it was necessary for respondent to go further and prove affirmatively some positive act of negligence or some omission of duty, before he can recover. On the other hand, it is the theory of the respondent that if one is injured by a team running wild on the highway, unattended by a driver, a presumption of negligence follows, and, in the absence of exonerating facts, the owner is liable; it being asserted that there is a well-settled distinction in the authorities between those cases where the team is running wild, and those where the team is running away in spite of the efforts of the driver. The lower court adopted the theory of respondent. For this, and a refusal to sustain the usual motions attending a jury trial, and a refusal to give requested instructions, a reversal of the case is insisted upon. It is further insisted that, although the lower court was right in its ruling on the motion for nonsuit, and a prima facie case was made out, appellant has met the burden by showing a compliance with the ordinances and customs hereinbefore alluded to; and its motions for judgment at the close of the case and for a new trial should be granted.
Carefully prepared briefs have been filed by counsel, but we feel that it is unnecessary to review the authorities. Without committing the court to the doctrine contended for by appellant, we may, so far as this case is concerned, accept it as the law, and still we think an affirmance of the judgment must follow; for, admitting that no presumption of negligence follows from the mere running away of a team, we are nevertheless controlled by the rule that legal conclusions as well as...
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Newton v. Pacific Highway Transport Co.
...is discussed at length in Kahaley v. Frye & Bruhn, 62 Wash. 43, 113 P. 247. Judge Chadwick, speaking for the court said, 62 Wash. at page 46, 113 P. at page 248. to reverse and remand this case we must hold as a matter of law that appellant's driver did, in fact, drop his 40-pound weight; o......