Morehouse v. City of Everett

Decision Date29 December 1926
Docket Number20017.
CourtWashington Supreme Court

Appeal from Superior Court, Snohomish County; Bell, Judge.

Action by Edith M. Glick Morehouse, as executrix, against the City of Everett. After an order granting plaintiff a new trial had been affirmed (136 Wash. 112, 238 P. 897), there was a judgment for plaintiff, and defendant appealed. Remanded for new trial.

O Duncan Anderson and J. W. Dootson, both of Everett, for appellant.

Wm. A Johnson, of Everett, for respondent.


Grand avenue runs from a residence section to the business portion of the city of Everett. Prior to March 11, 1924, the city had given some persons permission to move a dwelling along that street. By night of the day mentioned they had the building at a point on the avenue nearly midway between Everett avenue and Twenty-Sixth street, where they left it during that night. It had large sills under it, which were supported at either end on cribbing. It occupied practically the whole of the paved portion of the street, which pavement was from curb to curb. The lower portion of the sill on which the house rested was some four feet above the pavement. There was a red light placed on the building or cribbing at each end near the curb, thus leaving a space equal to nearly the width of the street where there were no lights of any kind. At about 10 or 11 o'clock of the evening in question, Dr Morehouse, who was a practicing physician in Everett, together with his wife, was going northerly on Grand avenue from down town towards their home. At that time they saw the building in the street, and detoured. At about 3 or 4 o'clock of the morning of the same night, the doctor was called from his bed by telephone and requested to attend an emergency case of sickness. Complying therewith, he arose, got into his automobile, started south on Grand avenue, and ran into the building in question. At the time of the collision, he was traveling in about the center of the paved portion of the street, which was 40 feet in width. The sill on which the building rested struck and cut off the radiator cap of his machine, and then the lower portion of the sill hit the swelled portion of the motor hood and the cowl, thus driving the steering wheel backwards and killing the doctor at once. It is conceded that there was more or less fog at the time of the accident, which interfered to some extent with clear vision. There were no eye witnesses to the accident. The jury brought in a verdict for the plaintiff, and, judgment being entered thereon, the city has appealed.

This case has previously been before this court. Morehouse v. City of Everett, 136 Wash. 112, 238 P. 897. At that trial, there was a verdict for the defendant. The trial court granted a new trial, and the city appealed. This court sustained the order granting the new trial.

1. The charter of the city of Everett has a provision requiring persons having claims for damages for personal injuries to present the same to the city within a certain time, and therein give certain designated information. This provision is substantially the same as that contained in the charter or ordinances of other cities. The claim in this instance was filed by the respondent while she was special administratrix of the estate of the deceased. It is contended that a special administratrix has no power, under the statute, to file such a claim, and in that respect we are referred to sections 1451 and 1453, Rem. Comp. Stat.

We think this question is foreclosed by the former appeal. It is true that the question was not discussed in the opinion rendered in that appeal and may not have been presented in the briefs, but it was directly involved, for there it was contended that the motions for nonsuit and for judgment notwithstanding the verdict should have been granted. If there was no lawful claim filed with the city, then the evidence was insufficient, and the court in that trial should have dismissed the case for want of sufficient evidence, instead of granting a new trial as it did. In Dennis v. Kass & Co., 13 Wash. 137, 42 P. 540, we said:

'The point is now made by the appellants that the complaint does not state facts sufficient to constitute a cause of action. This is the same complaint upon which the former case was tried, and if it does not state facts sufficient to constitute a cause of action, that question should have been raised upon the former trial. * * * If this complaint does not state a cause of action now, it did not at the time the appellants moved for a nonsuit at the first trial, and that question should have been determined. * * *'

In many cases we have held that questions determined on a previous appeal, or which, being involved, might have been determined had they been presented, will not be considered on a second appeal of the same action, particularly where the pleadings and the testimony are substantially the same in each trial, as was the case here. Buell v. Park Auto Transportation Co., 138 Wash. 678, 244 P. 992; Toadvine v. Northwest Trust & State Bank, 128 Wash. 611, 224 P. 22; State ex rel. Nicomen B. Co. v. North Shore Boom & Driving Co., 62 Wash. 436, 113 P. 1104; Smith v. Seattle, 20 Wash. 613, 56 P. 389. The foregoing are only a few of our cases on this question. We do not deem it necessary to cite more of them because they are all to the same effect.

The question now raised was directly and necessarily involved in the former appeal, and, since we there refused to grant a nonsuit or give a judgment notwithstanding the verdict, we must now hold that the question under discussion was disposed of in the former appeal.

2. It seems to be conceded that there was sufficient evidence concerning the negligence of the city to justify the case being sent to the jury, but the appellant elaborately argues that its motions for nonsuit and for judgment notwithstanding the verdict should have been granted because of contributory negligence on the part of the deceased. We think the previous appeal laid down the law in this respect, contrary to appellant's contention.

At the first trial, the jury brought in a verdict for the city, and it appealed to this court from an order of the trial court awarding the plaintiff a new trial. The pleadings at both trials were the same, and the evidence in each trial was to all intents and purposes the same. In the former appeal, one of the questions raised was that the trial court erred in granting a new trial because the evidence showed, as a matter of law, that the respondent ought not to recover because of his contributory negligence. In other words, there was involved in the former appeal the identical question here raised. Of course, for us to sustain the order of the lower court granting a new trial, it was necessary that we should consider whether there was any case which the court could send to the jury. In our opinion there, we said:

'Of course, if we could see that the verdict of the jury was, as a matter of law, the only verdict that could be rendered [one for the defendant], as is suggested but seemingly not seriously argued, it might still be said that respondent should not have been awarded a new trial. We have reviewed the evidence with some care in this behalf, however, and are quite convinced that the case could not have been properly so disposed of by the trial court.'

Not only, therefore, was this question of contributory negligence raised in the former appeal, but it was actually decided by us adversely to the city.

In the case of Perrault v. Emportium Department Store Co., 83 Wash. 578, 145 P. 438, there was a verdict for the plaintiff and a new trial awarded on the defendant's motion. We said:

'In an unbroken line of decisions we have consistently held that questions determined on appeal, or which might have been determined had they been presented, will not be considered upon a second appeal of the same action. As to such questions the first appeal conclusively settles the law of the case.'

To the same effect, see Hoffman v. Watkins, 89 Wash. 661, 155 P. 159; Scribner v. Palmer, 90 Wash. 595, 156 P. 531. Many other of our cases to like effect are cited in those just mentioned.

The trial court having granted the plaintiff a new trial after the jury had returned a verdict for the defendant, it follows that, in upholding the order granting the new trial, we necessarily held that there was evidence sufficient to go to the jury on the question of contributory negligence.

3. But if it should be conceded that the former appeal does not fix the law on this question, and we consider the matter only in the light of the facts here shown, we are of the view that there was sufficient evidence to carry the case to the jury on the questions of appellant's negligence and the deceased's contributory negligence. In this connection and also in support of the argument that the court erred in refusing to give a certain requested instruction which we will hereinafter notice, the appellant has forcefully and elaborately argued what has been stated as the 'drive within the radius of your lights' rule. Since this case must be returned for a new trial because of errors hereinafter to be pointed out, and since the doctrine above stated seems to be involved in this case and was much discussed at the trial, we deem it proper to here express our views on the subject. This supposed rule of 'drive within the radius of your lights' has been advanced in other cases in this court. It is here asserted, and has likewise been argued in other cases, that many of the courts have held that one driving an auto at night must, under all circumstances and as a matter of law, see whatever obstructions that are within...

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