Payne v. Spokane St. Ry. Co.

• Decision Date: 16 November 1896
• Citation: 46 P. 1054,15 Wash. 522
• Parties: PAYNE v. SPOKANE ST. RY. CO.
• Court: Washington Supreme Court

46 P. 1054

15 Wash. 522

PAYNE v. SPOKANE ST. RY. CO.

Supreme Court of Washington

November 16, 1896

Appeal from superior court, Spokane county; Norman Buck, Judge.

Action by Charles H. Payne against the Spokane Street-Railway Company. From a judgment for defendant, the plaintiff appeals. Reversed.

Winston & Winston, for appellant.

Thomas C. Griffitts, for respondent.

SCOTT J.

The plaintiff was a passenger on one of defendant's cars and, while it was rounding a curve, was thrown from it through the open doorway, and injured. He brought this action to recover damages, alleging that the defendant was guilty of negligence in running its car at a high and dangerous rate of speed around the curve. The verdict was for the defendant and the plaintiff has appealed.

The respondent moves to strike the statement of facts, on the ground that the same has not been settled in conformity with the law, and to dismiss the appeal, on the ground that the same is not legally taken; but, as no specific error has been called to our attention, either in the brief or by reference to the transcript, the motion will be denied.

But a single question is raised upon the appeal, and that is as to an instruction given by the court to the jury that "ordinary care is such care as persons usually engaged in the particular line of business in question ordinarily exercise in and about such business. If defendant in this case exercised such care at the time of the accident, it had discharged its full duty and plaintiff cannot recover." It is contended that this instruction does not lay down the proper rule in such cases and we think this contention is well taken; for the question was not whether the defendant had exercised such care as was usually exercised by persons in that particular business, but the question was whether it had exercised such care as the law required, and we think it is well settled that a common carrier of passengers is required to exercise the highest degree of skill and care which may reasonably be expected of intelligent and prudent persons engaged in that business, in view of the instrumentalities employed and the dangers naturally to be apprehended. The respondent contends that the appellant should not be allowed to urge this question, for the reason that he has not brought up all of the instructions of the court, and therefore that we should presume that proper instructions were subsequently...