Mosso v. E.H. Stanton Co.

• Decision Date: 03 September 1913
• Parties: MOSSO v. E. H. STANTON CO.
• Court: Washington Supreme Court

134 P. 941

75 Wash. 220

MOSSO v. E. H. STANTON CO.

Supreme Court of Washington

September 3, 1913

Department 2. Appeal from Superior Court, Spokane County; E. K Pendergast, Judge.

Action by Constantion T. Mosso against the E. H. Stanton Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Cannon Ferris & Swan, of Spokane, for appellant.

Don F Kizer, of Spokane, for respondent.

ELLIS J.

The plaintiff was struck and injured by defendant's motor truck at a point in Howard street in the city of Spokane a few feet south of the concrete bridge crossing the Spokane river. The Centennial mill is situated just north of the Spokane river on the west side of Howard street, which extends from in front of the mill in a straight line southerly for a distance of about 400 feet; the bridge being the same width as the street. There is no cross walk throughout this distance nor for over three blocks to the south. A double-tracked street car line occupies the middle of the street. On October 27, 1911, at about 15 minutes past noon, the plaintiff, having purchased a two-bushel sack of chicken feed at the Centennial mill, carrying it on his left shoulder, walked down the west side of Howard street for a distance of something over 300 feet to a point estimated by different witnesses at from 15 to 35 feet south of the south end of the bridge, at which point he stepped into the street and proceeded diagonally across the street with the intention of reaching the sidewalk on the east side. He testified that before stepping into the street he turned and looked north along the street and bridge, there being an unobstructed view to the Centennial mill, and saw no vehicle of any kind; that, when he had proceeded to about the middle of the street and was between the two car tracks, something struck him in the back and left side, rendering him unconscious. The testimony of three other witnesses introduced in behalf of the plaintiff was to the effect that he had reached a point between the two car tracks about the middle of the street when he was struck in the back, 'doubled up' in a crouching position under the front end of the motor truck, and shoved a distance of three or four feet; that the motor was running 'pretty fast' or '12 to 15 miles an hour,' did not swerve or change its direction as it approached the plaintiff, and stood about the middle of the street between the two car tracks and straight with the street when it came to a stop. The testimony of the chauffeur and three other witnesses who testified in defendant's behalf was to the effect that the plaintiff was struck either a little east of or a short distance west of the west rail of the west car track and shoved over onto the track; that the truck swerved toward the car track just as it struck him and came to a standstill, pointing slightly to the southeast. The chauffeur testified that the man stepped into the street immediately in front of the motor truck and that the brakes were at once applied and the machine stopped as quickly as possible. The machine was muffled, and all the witnesses agree that it made very little noise. All of the witnesses testified that they failed to hear any horn or gong sounded from the motor truck. Neither of the men in the motor truck testified to the giving of any alarm, save that one of them said he called to the man just as he was struck. The plaintiff suffered a fracture of the second lumbar vertebra, causing a deformity of the back and a permanent injury. The jury returned a verdict for $5,500. At appropriate times the defendant moved for a directed verdict, for judgment notwithstanding the verdict, and for a new trial, all of which were denied. Judgment was entered on the verdict. The defendant has appealed.

1. It is contended that the undisputed physical facts show respondent did not look north before starting across the street, and hence was guilty of contributory negligence, as a matter of law, under the rule announced in Fluhart v. Seattle Electric Co., 65 Wash. 291, 118 P. 51, Helliesen v. Seattle Elec. Co., 56 Wash. 278, 105 P. 458, and Skinner v. Tacoma Ry. & P. Co., 46 Wash. 122, 89 P. 488. The so-called physical facts relied upon are respondent's estimate that he was walking at the rate of about three miles an hour, and that he had walked about 40 feet from the curb before he was struck; that the highest estimate of any witness as to the speed of the motor truck was 15 miles an hour; and that the distance with an unobstructed view from the Centennial mill to the point of accident was 327 feet. It is argued that, since the motor truck was not running over five times as fast as the man walked, it could not go over 200 feet while he walked 40 feet; that therefore he did not look north just as he stepped into the street or he would have seen the motor truck; hence the physical facts show him guilty of contributory negligence in not so looking. The vice of this argument is in the assumption that the speed of both man and machine, as testified to, were indisputably established physical facts, whereas they were mere estimates. Either one or both of these estimates may have been incorrect. Mere estimates, given as such, can hardly discredit positive testimony to the point of incredibility as a matter of law. It would be equally as sound to take respondent's testimony that he looked north and saw no vehicle as a physical fact. The irresistible inference would then be either that the speed of the man was overestimated or that of the machine was underestimated. Soundly, neither the speed of the machine nor its position at the time when the respondent stepped into the street, nor the speed of the man, nor the fact that he looked north just after he stepped into the street were admitted or indisputably established facts, physical or otherwise. They were all questions for the jury upon the evidence. On the other hand, all of the evidence strongly tends to show that the appellant was guilty of negligence in failing to keep a reasonably vigilant lookout, in failing to sound a horn or gong, and in running in or near the middle of the street. Even if the respondent was also guilty of negligence in failing to look north when he first started to cross the street, he was not necessarily negligent at the time he was struck. Every witness who testified as to the collision, save the driver of the truck, placed the respondent at the time practically outside of the zone of danger reasonably to be anticipated from automobiles coming from the north and where it would be his duty to begin looking south for vehicles which might be approaching from that direction. A city ordinance, in evidence, made it the duty of drivers of automobiles 'to keep to the right and as near the right-hand curb as possible.' Every witness (save the chauffeur and one other) testified that the respondent, when he was struck, had reached a point inside of the west rail of the west car track, and the respondent and three eyewitnesses testified that, when he was struck, he had reached the middle of the street between the east rail of the west car track and the west rail of the east car track. Obviously he could not have been struck in either place had the driver of the motor truck observed the ordinance, a course of action upon which the respondent had the right to rely.

2. It is next contended that the court erred in submitting to the jury the question whether the appellant by an observance of the rule of 'last clear chance' could have avoided the accident. It is first argued that this rule cannot be invoked because the complaint did not admit contributory negligence on the respondent's part. The answer, however, denied any negligence of the appellant and alleged affirmatively that the respondent's injury was due to his own negligence. This was equivalent to an allegation that contributory negligence of the respondent was the proximate cause of the injury. It was put in issue by the denial in the reply. The rule of last clear chance is grounded in the doctrine of proximate cause. Like any other phase of proximate cause, evidence to sustain it may be submitted to the jury under the general issue. We cannot subscribe to the doctrine that the rule of last clear chance can only be invoked by a plea in confession and avoidance. It would be more logical to say that the defense of contributory negligence could not be made or submitted to the jury without confession of the primary negligence of the appellant. We have never so held, notwithstanding the fact that contributory negligence is in this state an affirmative defense which must be specially pleaded. The denial of contributory negligence is not necessarily a denial of any negligence on the part of the injured person. It is only a denial of negligence contributing directly to the injury. The doctrine of last clear chance, while presupposing some negligence on a plaintiff's part, relieves that negligence of its contributory character where the injury results proximately from the failure of a defendant to embrace the last clear chance to avoid the injury. Moreover, the allegation of the complaint (in addition to specific allegations of negligence) that the appellant was operating the motor truck 'recklessly and without regard to the safety of pedestrians on the highway' was sufficient to admit evidence of a violation of the last clear chance rule in the absence of a motion to make more specific.

3. It is also claimed that the evidence shows that both parties were concurrently negligent up to the time of the accident and that therefore the last clear chance rule cannot apply. Whether the respondent negligently failed to look for approaching vehicles before entering upon the street was clearly a question for the...