Osborne v. Charbneau

• Decision Date: 09 July 1928
• Docket Number: 21251.
• Citation: Osborne v. Charbneau, 148 Wash. 359, 268 P. 884 (Wash. 1928)
• Parties: OSBORNE et ux. v. CHARBNEAU et al.
• Court: Washington Supreme Court

268 P. 884

148 Wash. 359

OSBORNE et ux. v. CHARBNEAU et al.

No. 21251.

Supreme Court of Washington

July 9, 1928

Department 1.

Appeal from Superior Court, King County; James B. Kinne, Judge.

Action by Joseph W. Osborne and wife against Jules L. Charbneau and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Tolman J., and Fullerton, C.J., dissenting.

Joseph B. Smith and John A. Homer, both of Seattle, for appellants.

Reynolds Ballinger & Hutson, of Seattle, for respondents.

FRENCH J.

Early on the afternoon of the 18th day of July, 1927, plaintiff was walking westerly on the sidewalk on the southerly side of East Madison street between Twenty-Third and Twenty-Fourth avenues in the city of Seattle. The defendant Phyllis Charbneau, daughter of the other defendants, was driving easterly on East Madison street, having stopped at Twenty-Third avenue because of an arterial highway stop at that point. Proceeding from the Twenty-Third avenue intersection easterly on East Madison street for a distance of about one-half block, she noticed a street car at the intersection of Twenty-Fourth avenue and East Madison street, which was slowing down or stopping for the purpose of receiving or discharging passengers. There is, at approximately the point where she first noticed the street car, a perceptible break in the grade of East Madison street so that the grade of that portion of the street between the automobile and the street car was about 9 per cent. There is testimony in the record indicating that the street at this point was wet, although the day in question was bright and clear, and defendant's testimony is that the street was dry until she reached this point, when coming to this grade this portion of the street was wet by reason of having been recently sprinkled or flushed. While proceeding down this grade, the defendant attempted to slow her automobile and skidded, and continued to skid until she reached the intersection of East Madison street near Twenty-Fourth avenue, where her car struck the plaintiff Arminta Osborne knocking her down and throwing her over an embankment. Plaintiffs sued for damages, and from a judgment for the defendant this appeal is prosecuted.

The appellants' complaint seems to center around the instructions of the court, the claim being that the jury were misled and confused by the giving of inconsistant instructions. The following are the instructions given in so far as applicable to this case:

'No. 5. Except as herein otherwise instructed, the burden is on the plaintiffs to establish, by a fair preponderance of the evidence, the material allegations of their complaint that are denied by the defendants in their answer.

'No. 6. You are instructed that the basis of this action is negligence. 'Negligence' is the failure to use that degree of care which an ordinarily careful and prudent person would exercise under like or similar circumstances; it may consist in doing some act which a reasonably prudent person would not do under the same or similar circumstances, or in the failure to exercise some precaution which a reasonably prudent person would not have failed to exercise under the same or similar circumstances. Negligence is never presumed, but must be established by proof the same as any other fact in the case, and in order to entitle the plaintiff to recover, and except as herein otherwise instructed, he must prove by a fair preponderance of the evidence that the defendants were negligent in one or more of the particulars charged in the complaint, and that defendants' negligence was the proximate cause of the injury.

'By the term 'proximate cause' is meant the efficient cause of the injury or damage without which such injury and damage would not have been sustained. It is that cause which, in a direct, unbroken sequence, produces the injury complained of.

'The term 'fair preponderance of the evidence' means the greater weight of the credible evidence in the case. It does not mean necessarily a greater number of witnesses, but it means that evidence which carries the greater convincing power to your minds, regardless of the number of witnesses that may testify for one side or the other. It is that evidence which fairly turns the scales, which were evenly balanced before its introduction.'

'No. 10. The plaintiff Arminta Osborne being without dispute where she had a right to be, and it being admitted that she was struck, you are instructed that the burden of showing that defendant driver was not negligent is upon the defendants, as a matter of law.'

'No. 13. You are instructed that if you should determine from the evidence that the automobile in which the defendant was riding came suddenly and unexpectedly upon a wet pavement which caused said car to skid, and thus created a position of peril and of sudden emergency, then I instruct you that the law does not hold defendant to responsibility in the same degree for sound judgment and proper action as under other circumstances. The fact that the driver had to act suddenly in an emergency and without opportunity for deliberation is a circumstance to be taken into consideration in determining what is ordinary care in that situation.

'No. 14. You are instructed that if you find from the evidence that the defendant driver might have avoided the accident by adopting some other course of action than that pursued by her, she would not be guilty of negligence in that respect, provided you find that she exercised ordinary care under the circumstances and conditions then existing. The defendants' conduct in that regard is not necessarily to be judged by the facts as they now appear to you, but she is entitled to have her acts and conduct considered in the light of the facts as they appeared to her at the time, and if you find that the defendant with her view of all the circumstances as they were at that time exercised ordinary care, then the defendant driver is not guilty of negligence, and your verdict should be for the defendants.

'No. 15. If you find from the evidence that the driver of the automobile was guilty of any negligence prior to the emergency, if you find that an emergency was presented and that such negligence was the proximate cause of the accident, then your verdict must be for the plaintiffs and against all the defendants for such sum as you find they have been damaged.

'In other words, if you find an emergency was presented, and that in that emergency the defendant used ordinary care, the defendants would be excused by reason of the emergency, unless you also find that prior to the emergency, the defendants were guilty of negligence which was the proximate cause of the emergency.'

By other proper instructions the jury were told that if respondents failed to operate the automobile as would an ordinarily skillful person, failed to use reasonable care, and failed to observe the condition of the street and use such care as a reasonably prudent person would use under such circumstances, this would constitute negligence.

By instruction No. 10, quoted above, the trial court extended to this case the doctrine of res ipsa loquitur. We think it may be seriously questioned whether or not the doctrine of res ispa loquitur applies in a case such as this, where specific acts of negligence have been pleaded, and relied...