Ralston v. Vessey, 32345
| Decision Date | 11 August 1953 |
| Docket Number | No. 32345,32345 |
| Citation | 260 P.2d 324,43 Wn.2d 76 |
| Court | Washington Supreme Court |
| Parties | RALSTON, v. VESSEY et ux. |
James E. Duree, Raymond, Fred M. Bond, South Bend, for appellant.
Donley and Ingram, Donn F. Lawwill, Aberdeen, for respondents.
Plaintiff has appealed from the judgment entered on a verdict for defendants, in his action to recover for injuries sustained in an automobile accident. His principal assignments of error involve certain instructions to the jury, so we need not make more than the following brief statement of the facts.
Plaintiff noticed that the left rear tire on his automobile was getting soft as he was driving in an easterly direction on state highway No. 410, where it is also known as Wishkah street, in Aberdeen, Washington. The tire was not deflated completely, and he continued to drive about 800 feet before he stopped to change it. Throughout this distance, on the south side of the highway, there is a sloping curb forming a shallow gutter between the edge of the pavement and a gravel-surfaced railroad bed. This roadbed is built so that its surface is level with the top of the curb and of both rails, outside of and between the rails. It is 12.5 feet wide, and it is about 4.5 feet from the curb to the nearer rail at the point where plaintiff parked to change the tire.
He testified that he stopped his car off the paved portion of the road, on his righthand side, with only its left wheels in the gutter, but there was other evidence that his car was parked with all of its wheels on the pavement. When he was at the rear of his car putting the deflated tire in the trunk, he was struck by defendants' car. These events occurred about one o'clock on a morning when there was a heavy mist in the air.
The court gave its instruction No. 6 upon, and in the language of, the statute regarding the parking of vehicles on a public highway. RCW 46.48.290 [cf. Rem.Rev.Stat., Vol. 7A, § 6360-110]. Because no exception was taken to this instruction, it states the law of this case. State v. Hall, 1952, 41 Wash.2d 446, 451, 249 P.2d 769, and case cited.
Instruction No. 6 1/2, which plaintiff asserts is erroneous in part, is but an application of that law to the issues of fact before the jury. It is too late now for plaintiff to assert that the court should have instructed upon the theory that, because this accident occurred in the city of Aberdeen, the statutory law stated in instruction No. 6 is not applicable. He not only requested an instruction upon this phase of the statutory law, but he also did not except to the instruction given on that subject. He cannot be successful in this court upon a theory not presented to or considered by the trial court. Muck v. Snohomish County Public Utility District No. 1, 1952, 41 Wash.2d 81, 88, 247 P.2d 233, and cases cited. This rule forecloses our further consideration of the assignment of error upon instruction No. 6 1/2, and also makes it unnecessary to consider plaintiff's contention that the court erred in failing to take judicial notice of the fact that the site of the accident was within the limits of the city of Aberdeen.
Plaintiff also complains of a portion of an instruction given as No. 14. This instruction dealt with the duty of defendant driver to look ahead and see objects on the highway. It was given in the language requested by plaintiff, except for the addition of the phrase, 'legally on the highway,' appearing in the following paragraph:
The added language is consistent with another instruction requested by plaintiff, given as No. 13 and reading as follows:
'The court instructs you that the driver of an automobile upon a street or highway of this state, has a right to presume that all other persons using the street or highway will conform to the laws of the State of Washington, and has the right to act thereon until it otherwise appears.'
In view of plaintiff's theory, expressed in his requested instructions, and considering the instructions as a whole, there is no error in instruction No. 14 in this case.
Considering plaintiff's next assignment of error, we find that, by unchallenged instructions Nos. 7 and 20, which express the law of this case, a pedestrian is defined to include every person walking or standing upon a public highway, regardless of what that person is doing. These instructions were applicable to the issues, and there is ample evidence to support a finding...
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State v. Johnson
...to instructions will generally not be considered if not within the scope of an exception taken at trial. See, e.g., Ralston v. Vessey, 43 Wash.2d 76, 80, 260 P.2d 324 (1953). Here, Johnson's exception was premised solely on the ground that the instruction infringed upon his right to remain ......
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Edgar v. Brandvold
...applying adjectives to the 'degree of care.' Ewer v. Johnson, 44 Wash.2d 746, 756, 270 P.2d 813 (1954); Ralston v. Vessey, 43 Wash.2d 76, 79, 260 P.2d 324 (1953); Beireis v. Leslie, 35 Wash.2d 554, 568, 214 P.2d 194 ...
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Siegler v. Kuhlman, 41696
...is not assigned becomes the law of the case. E.g., Kindelspire v. Lawrence, 44 Wash.2d 722, 270 P.2d 477 (1954); Ralston v. Vessey, 43 Wash.2d 76, 260 P.2d 324 (1953). I think it beyond the proper scope of appellate review to 'try the case' for the I turn to the sole and only assignment of ......
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Falk v. Keene Corp., 21302-4-I
...instruction, but is really to the relationship between it and the negligence instructions, the issue was waived under Ralston v. Vessey, 43 Wash.2d 76, 260 P.2d 324 (1953). We disagree. It would have been futile for the appellants to object to the negligence instructions given the trial cou......