Redford v. Spokane Street-Railway Co.

• Decision Date: 28 May 1894
• Citation: 36 P. 1085,9 Wash. 55
• Parties: REDFORD v. SPOKANE ST. RY. CO.
• Court: Washington Supreme Court

36 P. 1085

9 Wash. 55

REDFORD v. SPOKANE ST. RY. CO.

Supreme Court of Washington

May 28, 1894

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

Action by Oliver W. Redford against the Spokane Street-Railway Company for damages for personal injuries. Judgment for plaintiff. Defendant appeals. Reversed.

Dunbar C.J., dissenting.

Thomas C. Griffitts, for appellant.

Forster & Wakefield, for respondent.

HOYT J.

Plaintiff sought by this action to recover for personal injuries alleged to have been received by him in a collision between one of the cars of the defendant and the wagon in which he was riding. It is evident from the course of the trial, as shown by the record, that the superior court construed the allegations of negligence on the part of the defendant set out in the complaint to be such that thereunder evidence of negligence in general could be introduced, and a verdict thereon rendered by the jury. This is not only evident from its rulings upon the admission of testimony, but is also shown by the instructions given to the jury. To show this, it is only necessary to give the following brief extract from the instructions: "If you find that *** the defendant, or the motorman who operated its cars, was guilty of negligence or recklessness or carelessness which produced the accident, then the plaintiff ought to recover,"-from which it will be seen that thereunder the jury were authorized to find a verdict for the plaintiff if they found that the defendant or its motorman had been guilty of any negligence whatever. Under this instruction, the jury were authorized to find a verdict for the plaintiff if they found that the defendant had allowed its car to get out of repair so that it could not be stopped as soon as if in repair, or in any other way had failed to discharge its full duty in the conduct of its business, and the accident had resulted therefrom. It is evident that only the fullest allegations of general negligence would warrant the giving of this instruction; and from the fact that it was given, and from the other circumstances above referred to, it is clear that the case was tried upon the theory that such was the effect of the allegations of the plaintiff as to the negligence of the defendant. If the court was right in thus construing the complaint, most of the assignments of error would be successfully answered by the brief of the respondent. If it was wrong in so doing, there should, of course, be a new trial, as it is evident that the rights of the defendant were adjudicated in view of a complaint which had never been filed. That part of the complaint which contains the allegations relating to the negligence of the defendant is as follows: "The plaintiff was traveling in his wagon in said city along and over certain streets avenues, and highways thereof, and, among others, over Bridge street; that, while thus traveling in an easterly direction on said Bridge street, the defendant, by its servants and agents, carelessly and negligently ran one of its cars along said street at a high rate of speed, and negligently and carelessly omitted, while approaching plaintiff, to give any signal by ringing the bell, or otherwise, of the approach of said car, by reason whereof the plaintiff was unaware that said car was approaching; that, in consequence thereof, the said car struck and overturned plaintiff's wagon." We have carefully considered this language, in the light of the authorities cited by the respective parties, and are unable to construe it as did the trial court. In our opinion it contains no allegation whatever of general negligence. Such language amounted to nothing more than an attempt to charge two particular acts of negligence,-one that the car was run along the street at a high rate of speed, and the other that no signal of its approach was given. It is impossible to so construe it as to cover more than these two specifications of negligence. It certainly was not negligence on the part of the defendant to run one of its cars along the street, for the reason that in another part of the complaint it was alleged that it had the right to run its cars on this particular street. Hence the terms "carelessly and negligently," as first used, could not refer to the fact of the running of the car, and could only refer to the high rate of speed mentioned therein; so that, if the first clause is to be given its fullest effect, it is only alleged that the high rate of speed was the careless and negligent act of which complaint was made. It may well be doubted as to whether or not this allegation was sufficiently definite to be considered as even a proper allegation of negligence at all, for the reason that to run a car at a high rate of speed does not charge that it is negligently run. The simple fact that a car is so run is in itself no proof of negligence, and to say that it was so run negligently does not aid in construing the act of negligence charged. It may therefore well be doubted as to whether or not this clause should have any weight whatever, but it is clear to our minds that it can have no other force than that of charging negligence in the rate of speed at which the car was run. It is still more clear that the other clause does no more than to charge a single act of negligence, to wit, the failure to give the signal upon the approach of the car.

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