Osborne v. Charbneau
Decision Date | 09 July 1928 |
Docket Number | 21251. |
Parties | OSBORNE et ux. v. CHARBNEAU et al. |
Court | Washington Supreme Court |
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.
Joseph B. Smith and John A. Homer, both of Seattle, for appellants.
Reynolds Ballinger & Hutson, of Seattle, for respondents.
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:
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...
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