Minor v. Stevens

• Decision Date: 27 October 1911
• Citation: 65 Wash. 423,118 P. 313
• Parties: MINOR v. STEVENS.
• Court: Washington Supreme Court

118 P. 313

65 Wash. 423

MINOR v. STEVENS.

Supreme Court of Washington

October 27, 1911

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

Action by John Minor against Charles C. Stevens. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

H. W. Lueders, for appellant.

Frank C. Neal and Davis & Neal, for respondent.

CHADWICK J.

Plaintiff sues to recover damages alleged to have been suffered because of the negligence of a chauffeur in the employ of the defendant, who is engaged in the business of carrying passengers for hire. Several defenses were interposed, among others, that of contributory negligence. It appears that about 4 o'clock in the morning, when it was raining and sleeting, plaintiff was on his way to his work, and while crossing a street in the city of Tacoma was run down by respondent's automobile, and sustained the injuries upon which this action is predicated. Respondent, who had his umbrella well down over his head, testifies that he did not see or hear the machine, although there is testimony tending to show that the horn was sounded and that the muffler was cut out. As we view the case, a further review of the testimony is unnecessary.

Although the defense of contributory negligence would have been covered by the general verdict, the trial judge nevertheless submitted a number of special verdicts, among them the following: 'Could the plaintiff, in the exercise of his ordinary faculties, have heard the horn or noise of the machine, seen the lights, and observed the approaching vehicle by glanding in the direction from whence the noise and lights of the automobile came?' To which the jury answered: We do not know.' The court instructed the jury quite fully on the issue of contributory negligence; one of his instructions being: 'It is the duty of a pedestrian, traveling in public streets of the city, to reasonably exercise for his personal safety the faculties with which he is endowed by nature, for self-protection; and if he fails so to do and is by reason of such failure injured, he has at least contributed by his negligence to his injury, if it has not wholly resulted therefrom, and cannot legally recover anything from any one on account of such injury.' It is hardly possible to lay fown a fixed rule in this class of cases; for, as has been said, negligence is a relative and comparative term, and each case must depend upon its own circumstances. Yet nevertheless, there is a duty on all parties to exercise reasonable care to prevent accidents and collisions. Babbitt Law of Motor Vehicles, par. 272; Berry, Law of Automobiles, § 171. Although a higher degree of care rests upon the driver of a vehicle because of the dangerous instrumentality which he controls, yet it is universally held that the right to the street lies in both parties, and their duty to exercise due care is reciprocal, whatever the character of the vehicle may be. See Hellieson v. Seattle Electric Co., 56 Wash. 278, 105 P. 458, where the authorities are collected.

In Hannigan v. Wright, 5 Pennewill (Dec.) 537, 63 A 234, the court said: 'A traveler on foot has the same right to the use of the public streets of a city as a vehicle of any kind. In using any parts of the streets, all persons are bound to the exercise of reasonable care to prevent collisions and accidents. Such care must be in proportion to the danger or the peculiar risks in each case. It is the duty of the person operating an automobile, or any other vehicle, upon the public streets of a city, to use ordinary care in its operation, to move it at a reasonable rate of speed, and cause it to slow up or stop if need be, where danger is imminent, and could, by the exercise of reasonable care, be seen or known in time to avoid accident. Greater caution is required at street crossings and in the more througed streets of a city than in the less obstructed streets in the open or suburban parts. There is a like duty of ecercising reasonable care on the part of the pedestrian. The person having the management of the vehicle and the traveler on foot are both required to use such reasonable care as the circumstances of the case demand; an exercise of greater care on the part of each being required where there is an increase of danger. The right of each must be exercised in a reasonable and careful manner, so as not unreasonably to abridge or interfere with the rights of the other; and both are bound to the reasonable use of all their senses for the prevention of accident, and the exercise of all such reasonable caution as ordinarily careful and prudent persons would exercise under like circumstances. * * * It is true that a person crossing a public street of a city is required to make a reasonable use of all his senses in order to observe an impending danger, and if he fails to do so, and is injured by reason of such failure, he is guilty of such negligence as will prevent any recovery for the injury sustained. Such reasonable use of the senses, however, means such use as an ordinarily prudent and careful person would have used under like circumstances. And so in the case before you, if the plaintiff saw the automobile before it struck her, or by the reasonable use of her senses could have seen it in time to...