Pepperall v. City Park Transit Co.

• Decision Date: 18 July 1896
• Parties: PEPPERALL v. CITY PARK TRANSIT CO.
• Court: Washington Supreme Court

45 P. 743

15 Wash. 176

PEPPERALL v. CITY PARK TRANSIT CO.

Supreme Court of Washington

July 18, 1896

Appeal from superior court, Spokane county; Jesse Arthur, Judge.

Action by Sidney John Pepperall, an infant, by William Pepperall his guardian ad litem, against the City Park Transit Company for personal injuries. From a judgment in favor of plaintiff defendant appeals. Reversed.

For dissenting opinion, see 46 P. 407.

Graves Wolf & Graves, for appellant.

Dawson & Plattor and Fenton & Saunders, for respondent.

GORDON, J.

The respondent, an infant, brought this action by his guardian ad litem to recover damages for personal injuries alleged to have been sustained in being run over by one of the cars of the appellant, a corporation operating an electric street railway in the city of Spokane. The complaint charges negligence upon the part of the appellant, in that the car which ran over plaintiff was at the time operated "without the aid of a careful and competent conductor thereon"; also, that it was operated and run "by an incompetent and negligent motorman in charge thereof, and with no other person or employé of said defendant, or any other persons, in control or charge thereof"; that said motorman "operated and ran said car at a high and reckless rate of speed," and, in that, "negligently failed and neglected to ring any bell, or give any alarm whatever" to the plaintiff; that he "negligently failed to look ahead of said car and guard against running against and over" the said plaintiff; and that at the time the injuries complained of were sustained the car "was out of repair and defective, so that the same could not be stopped or controlled by the brakes thereon." The answer denies the main allegations of the complaint, and affirmatively alleges contributory negligence upon the part of the plaintiff, and also upon the part of his father. Upon the trial the court, among others, gave the following instruction to the jury: "(4) You are instructed that the complaint in this case charges negligence against the defendant, in that the motorman was incompetent and in that there was no conductor or assistant to said motorman on the car, and in that the car was out of repair, and brakes out of order, and no bell upon it, and in that it was run at a high and dangerous speed, and in that no bell or other warning was rung by the defendant, attached to the car; and of these several allegations of negligence you are instructed that there is no evidence before you which would permit you to consider the same, except the allegation as to the speed of the car, and as to the failure to ring the bell. You are therefore instructed not to consider any of the allegations of negligence in the complaint, except these two." The jury returned a general verdict in favor of plaintiff for the sum of $2,500, and also returned certain special verdicts or findings, only six of which we deem it necessary to notice. They are as follows: "(1) At what rate per hour was the car of defendant running at the time it struck plaintiff? Nine miles. (2) At what rate per hour would ordinarily and reasonably prudent men engaged in like business as the defendant run a car like that of the defendant, which caused the injury in question, at the time and place where defendant's car was being operated? Five miles per hour." "(6) Would the injury to plaintiff have occurred, had said car been running at a rate of speed found by you in special verdict two? Yes." "(21) How far was the plaintiff from the track of defendant when the motorman first observed him, or, by the use of reasonable care and prudence, could first have observed him? Fifteen feet. (22) How far was the plaintiff from defendant's car when the motorman in charge first saw him, or, by the use of ordinary care and prudence, could have seen him? Twelve feet. (23) After the motorman first saw the plaintiff, did he use reasonable prudence and care to stop the car? Yes." Upon reception of the general verdict and special findings, the plaintiff moved for judgment upon the general verdict; and the defendant (appellant here) moved the court for judgment upon the special findings, notwithstanding the general verdict, upon the ground that the general verdict was inconsistent with the facts specially found, and that the facts so found by them entitled the defendant to judgment, as matter of law. The appellant's motion for judgment upon the special findings was denied, and exception taken. Respondent's motion for judgment upon the general verdict was granted, and the cause appealed.

It is the contention of the appellant that by the instruction above set out the court withdrew from the consideration of the jury all the allegations of negligence set out in the complaint excepting only that the car was run at a high and dangerous rate of speed, and that no bell was rung, or other warning given by the defendant of the approach of the car. It must be conceded that all other allegations of negligence contained in the complaint were by this instruction expressly withdrawn from the jury's consideration, but counsel for the respondent insists very strenuously that the court erred in giving this instruction, to which the apellant replies that, whether the instruction in question was rightfully or wrongfully given, it was binding and conclusive upon the jury, and constitutes, upon this hearing, the law of the case; and with this latter insistment we agree. This court, upon appeal from a judgment in a particular case, can only consider errors complained of by the appellant, and, in the absence of a cross appeal, cannot examine the record for the purpose...