Price v. Gabel

• Citation: 298 P. 444,162 Wash. 275
• Decision Date: 27 April 1931
• Docket Number: 22439.
• Parties: PRICE v. GABEL et ux.
• Court: United States State Supreme Court of Washington

298 P. 444

162 Wash. 275

PRICE v. GABEL et ux.

No. 22439.

Supreme Court of Washington, En Banc.

April 27, 1931

Appeal from Superior Court, Lewis County; W. A. Reynolds, Judge.

Action by S. H. Price against J. E. Gabel and wife. Judgment for defendants, and plaintiff appeals.

Affirmed.

C. D. Cunningham, of Centralia, and Ponder &amp Ponder, of Chehalis, for appellant.

Hull &amp Murray, of Chehalis, for respondents.

FULLERTON J.

In this action, the appellant, Price, sought to recover in damages against the respondents, Gabel, for personal injuries inflicted upon him, as he alleged, by the negligent operation of an automobile of the respondents. A general demurrer was interposed to his complaint, which the trial court sustained. He refused to plead further, whereupon the court entered a judgment dismissing his action. The appeal is from the judgment so entered. The ultimate question presented by the appeal is, therefore, does the complaint state facts sufficient to constitute a cause of action? The allegations of the complaint material to the question involved are the following:

'III. That the defendants now are and at all times herein mentioned have been residents of Lewis County, Washington, and have been and now are engaged in the business of buying, selling and repairing of automobiles, their place of business being on Market Street in the City of Chehalis, Washington, said business being carried on under the firm name and style of St. Helens Garage.

'IV. That at all the times herein mentioned there was in full force and effect a certain city ordinance of the City of Chehalis, Washington, the same being No. 424-A and entitled: 'An ordinance regulating travel and traffic on the streets of the City of Chehalis, Washington, providing penalties for the violation thereof, repealing ordinances or parts of ordinances in conflict herewith, and all prior traffic ordinances, and declaring an emergency,' the same having been passed by the city commission of the City of Chehalis, Washington, on the 13th day of June, 1927, and approved thereafter by the mayor of said city on the said 13th day of June, 1929, and in sub-division 8 of section 1 of said ordinance, among other things, it is provided as follows: 'Before backing ample warning shall be given and while backing unceasing vigilance must be exercised so as not to injure those behind.'

'V. That the said plaintiff is now and for many years last past has been engaged in the business or profession of photographer and that on or about the 27th day of May, 1929, in the afternoon of said day, said plaintiff was attempting to take a photograph of a certain building or premises located on the west side of Market Street in the City of Chehalis, said Market Street being one of the principal thoroughfares of said city and extending in a northerly and southerly direction, and the said building of which the plaintiff was attempting to take a photograph being almost opposite the garage building in which said defendants were engaged in carrying on their said business, and at the day and time aforesaid the plaintiff had set his camera about the middle of Market Street and almost directly opposite the building used and occupied by said defendants as aforesaid, said camera being situate about midway between the curb lines of Market Street and at a distance of approximately 35 or 40 feet from the front of the building occupied by the defendants for garage purposes, and as plaintiff was in the act of taking said photograph as aforesaid, and after plaintiff had looked in a northerly and southerly direction on Market Street to ascertain, and did ascertain, that said Market Street was free from traffic moving in either a northerly or southerly direction, and having theretofore set and focused his camera as aforesaid, and at all times exercising due care and caution, and while his back was turned to said building occupied by said defendants, and the driveway leading therefrom into Market Street, and at all times being in plain view of defendants, their servants and agents, and while plaintiff was oblivious to danger from that direction, all of which was known to defendants, their servants and agents, or by the exercise of ordinary care on their part could have been known, the said defendants, their servants, agents and employees, carelessly, negligently and unlawfully, and without giving said plaintiff, or any one else using said street, ample warning, or any warning at all, and without exercising unceasing vigilance, or any vigilance at all, and without any warning by horn or otherwise, suddenly and with great, dangerous and excessive speed backed an automobile out of the driveway from said garage building in a westerly direction, and while plaintiff's back was turned as aforesaid, and while plaintiff was oblivious to any danger from that direction, all of which was well known to said defendants, their agents, and servants, or by the exercise of ordinary care could have been known to them, struck said plaintiff with great force and violence, knocking him to the pavement and destroying his camera, and as a result thereof plaintiff suffered the injuries hereinafter set forth.'

The record does not disclose the reasons which actuated the trial court in holding that the complaint did not state a cause of action. We gather, however, from the arguments of counsel that it did not rest its conclusion on the ground that the acts of the respondents did not constitute negligence, but rested it rather on the ground that the appellant himself was guilty of negligence, and that his negligence so far contributed to his injury as to bar his right to a recovery.

Preliminarily, the appellant suggests a question which may be noticed here. He contends that he violated no positive rule of law in taking the position in the street he did take and in proceeding with the business he had in hand. But we think his act was in direct violation of the provisions of the ordinance he pleads in his complaint. He pleads the ordinance, it is true, for one purpose only--the purpose of showing that the respondents backed their automobile into the street without giving ample warning and without exercising that unceasing vigilance the provisions of the ordinance enjoined upon them. But, having pleaded the ordinance, the ordinance was before the court for all purposes, and the court could properly examine it for the purpose of ascertaining whether it contained provisions making the acts and conduct of the appellant unlawful. Turning to the ordinance, we find a number of provisions which it could be said the appellant violated, but we think we need cite no other than its sections two and ten. Section 2 provides: 'It shall be unlawful for any person or persons to engage in any * * * occupation, upon any street or avenue in the city of Chehalis.' Section 10 provides: 'All obstruction to traffic on either streets or sidewalks of any kind, nature, or character, is hereby prohibited; and if necessity demands the temporary obstruction of either the street or sidewalk by any kind of material, the person desiring to so obstruct the street or sidewalk must first obtain a permit from the city so to do.' Plainly, we think, the appellant violated these provisions of the ordinance. Without question, his act in setting up his camera in the middle of the street, and proceeding to take a picture of a building on the margin of the street, was to engage in an occupation in the street, and was to obstruct traffic thereon.

The ordinance is a positive law, and its violation was the violation of a positive law. Engelker v. Seattle Electric Co., 50 Wash. 196, 96 P. 1039; Hillebrant v. Manz, 71 Wash. 250, 128 P. 892; Johnson v. Heitman, 88 Wash. 595, 153 P. 331; Twedt v. Seattle Taxicab Co., 121 Wash. 562, 210 P. 20. This court has many times held that to violate a positive law is in itself negligence. See Keller v. Breneman, 153 Wash. 208, 279 P. 588, 67 A. L. R. 92, and the cases there collected. There can be no question, therefore, but that the appellant's conduct constituted negligence as matter of law.

But it is not the rule that any degree of negligence on the part of a person injured which contributes to an injury will bar a recovery against the person who by his negligence commits the injury. The negligence of the injured person before this result will follow must have contributed to the injury in some material degree, or, as we have sometimes expressed it, in an appreciable degree. Slight or inconsequential negligence will not operate as a bar. The negligence must have been of such a character as to show a want of ordinary or reasonable care on the part of the injured party; that degree of care and caution which an ordinarily prudent person would exercise under like or similar circumstances. Spurrier v. Front Street Cable Ry. Co., 3 Wash. 659, 29 P. 346; Atherton v. Tacoma Ry. & Power Co., 30 Wash. 395, 71 P. 39; Bullis v. Ball, 98 Wash. 342, 167 P. 942; Peterson v. Pallis, 103 Wash. 180, 173 P. 1021; Hullin v. Seattle Taxicab Co., 119 Wash. 311, 205 P. 403; Twedt v. Seattle Taxicab Co., 121 Wash. 562, 210 P. 20.

The main question for determination, therefore, is whether the negligence of the appellant contributed to his injury to such a material or appreciable degree as to require the court to hold as matter of law that it stands as a bar to his right to a recovery. On this question, the appellant argues that his presence in the street was a mere condition of the accident making the accident possible, but not constituting its proximate cause, and draws the conclusion therefrom that the question was for the jury. To sustain the contention he cites our case of Redford v. Spokane Street Ry. Co., 15 Wash. 419, 46 P. 650. The facts of the cited...