Matson v. Pierce County

• Decision Date: 26 December 1916
• Docket Number: 13652.
• Citation: 94 Wash. 38,161 P. 846
• Court: Washington Supreme Court
• Parties: MATSON v. PIERCE COUNTY.

161 P. 846

94 Wash. 38

MATSON v. PIERCE COUNTY.

No. 13652.

Supreme Court of Washington

December 26, 1916

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Leo Matson against Pierce County. Judgment of dismissal after verdict for defendant, and plaintiff appeals. Affirmed.

Bates Peer & Peterson, of Tacoma, for appellant.

Fred G Remann and A. B. Bell, both of Tacoma, for respondent.

MOUNT J.

Action for personal injury. On the night of November 7, 1914, at about 8:30 o'clock, appellant was driving a one-horse wagon down a hill on one of the public county roads of Pierce county. The hill was long, and the road was cut into the side of the hill so that upon the left side the bank rose precipitously. On the right side there was a declivity of 30 or 40 feet down to a river. While the appellant was upon this road, he met an automobile coming up the hill. When the appellant, driving down the hill, saw the automobile coming up the hill toward him, he turned his horse to the left toward the bank above him, and stopped near the bank until the automobile passed The night was dark, and appellant could only see enough to guide the horse in the road. When the appellant stopped his horse he must have been up to, or very close to, a log about 27 inches in diameter which leaned upon the bank with the lower end fixed in the ground at the side of the traveled way. After the automobile had passed, the appellant started his horse again down the hill, when the wheels of his wagon struck the log, and he was thrown out and injured. In his complaint he alleged that the county was negligent in maintaining the road with the log upon the side of the bank in the position stated. The county, in answer to the complaint, denied the allegations of negligence, and pleaded contributory negligence. Upon these issues the case was tried to a jury, and a verdict was returned in favor of the defendant.

Plaintiff has appealed from the judgment of dismissal entered upon the verdict of the jury, and alleges that the court erred in giving the following instruction:

'This action is based upon the alleged negligence of the county. If the county was guilty of negligence in its supervision or care of the road at the place where the accident occurred and that negligence was the cause of the accident, it is liable for the injury sustained by the plaintiff, if the plaintiff himself was free from negligence in using the road at the time of the injury. If the county was not negligent in its care of the road, it is not liable.'

It is argued by the appellant that this instruction is erroneous: First, because it fails to state that appellant's negligence, to defeat a recovery, must have contributed to his injury; second, that such negligence on his part must have been the proximate cause of the injury; and, third, that it imposes a higher degree of care upon the appellant than the law requires. If this instruction stood alone, it would, no doubt, be insufficient, because it seems to require that the appellant himself should be free from negligence, but it is apparent from the reading of the instruction itself that it is merely a statement of the case, without an attempt to define either negligence or contributory negligence. It is a prefatory or explanatory statement. Further along in the instructions, the court defined what would constitute contributory negligence, and after stating to the jury what circumstances they might consider in order to determine whether the appellant was guilty of contributory negligence, said that the jury might consider----

'* * * all of the circumstances and conditions surrounding the situation at the time that should appeal to a man of ordinary prudence in deciding which was the reasonably safe and cautious thing to do; and, if you find that in doing so he acted as a reasonably prudent person, mindful of his own safety, would have done under the same circumstances, he is not guilty of contributory negligence in turning to the left. In determining whether the plaintiff could have avoided running over the end of the log by the exercise of the degree of care required of him at the time, you are to consider the length of time the plaintiff had personally known that the tree was there, and you are to take into consideration the number of times plaintiff had driven along the road, by the tree, and how familiar he was with the road and that locality, and with the circumstances surrounding the case; and if from all the circumstances you are of the opinion that, by the use of ordinary care he could and would have avoided the tree, then you would be justified in finding that he was guilty of negligence contributing to the injury, and in such case the plaintiff cannot recover.'

So it is clear that the instruction complained of was not the only one upon the degree of care required of the appellant. It was merely explanatory. This court has held that where such instructions, taken in connection with the remainder,...