Reed v. Tacoma Ry. & Power Co.

• Citation: 201 P. 783,117 Wash. 547
• Decision Date: 16 November 1921
• Docket Number: 16691.
• Court: United States State Supreme Court of Washington
• Parties: REED v. TACOMA RY. & POWER CO.

201 P. 783

117 Wash. 547

REED v. TACOMA RY. & POWER CO.

No. 16691.

Supreme Court of Washington

November 16, 1921

Department 1.

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by B. F. Reed against the Tacoma Railway & Power Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Williamson Freeman & Broenkow, of Tacoma, and Warren H. Lewis, of Seattle, for appellant.

F. D Oakley, of Tacoma, for respondent.

BRIDGES J.

This is a personal injury case. It has once before been in this court. Reed v. Tacoma Railway & Power Co., 110 Wash 334, 188 P. 409. The general facts are stated in that case, where the judgment of nonsuit was reversed. At the second trial there was a verdict for the defendant, and the plaintiff has appealed from a judgment dismissing the action.

For the purpose of our discussion here, it will not be necessary to say more than that the plaintiff was in his automobile, being driven by his daughter. At about midnight they were driving northerly on that part of Yakima avenue which goes through Wright Park. That avenue intersects Division avenue, from which at this point starts North First street. The street car tracks come from the west on Division avenue, and at the general intersection leave that avenue and run northeasterly on First street. The driver of the automobile testified that she did not see the oncoming street car till she was very close to the track; that she suddenly found herself in a position of danger; that in the emergency she decided she was too close to the car track to stop, and that she concluded the best thing to do was to attempt to get across the tracks before the street car, which was close by, could strike her; that she was unable to get across in time to avoid a collision; that the street car hit the rear portion of the automobile, and plaintiff, her father, was injured and the automobile damaged.

The appellant complains of the following instruction given by the court to the jury:

'You are further instructed that if the plaintiff's daughter thought she had time to drive upon the tracks of the defendant and off of them again before the car of the defendant would reach her, and did not have sufficient time so to do, then it was an error in judgment on the part of the plaintiff's daughter, and the plaintiffs cannot recover, and your verdict must be for the defendants.'

This instruction does not correctly state the law. Error of judgment is not necessarily negligence. The correct test in cases of this character is, Did the person act as a reasonably prudent person would have acted under similar circumstances? The mere fact that one errs in judgment is not conclusive proof that he did not act as a reasonably prudent person would have acted under like circumstances. The driver of the automobile admitted that, in the emergency, she thought she would be safer in making an effort to get across ahead of the street car. It will not do to say that simply because her judgment proved to be bad she did not act as a reasonably prudent person would have acted under the circumstances. One may be mistaken as to the best course to pursue without being guilty of negligence as a matter of law. Mistaken judgment is not necessarily negligence.

On page 216, Shearman & Redfield on Negligence (6th Ed.) the rule is stated as follows:

'Care must be proportioned to the circumstances. In either case the plaintiff is bound to take that degree of care which persons of ordinary care and prudence are generally accustomed to use under similar circumstances, but no more. It is not enough that he should use 'his own best judgment.' That is not the proper test. Nor, on the other hand, is it always necessary 'to exercise the best judgment, or to use the wisest precaution.''

In the case of Berg v. City of Milwaukee, 83 Wis. 599, 53 N.W. 890, the court said:

'In the same connection the court charged the jury, in effect, that if the plaintiff was at the time 'using his best judgment,' and it turned out that in doing so he had fallen into error, that was 'not to be imputed to him as negligence.' This made the plaintiff's best judgment the standard of care which he was required at the time to exercise, instead of the well-established standard fixed by the law.'

In the case of Lent v. N.Y. Cent. & H. R. R. Co., 120 N.Y. 467, 24 N.E. 653, the court said:

'The test of contributory negligence or want of due care is not always found in the failure to exercise the best judgment, or to use the wisest precaution. Some allowance may be made for the influences which ordinarily govern human action, and what would under some circumstances be a want of reasonable care might not be such under others.'

In the case of The Germanic, 196 U.S. 589, 25 S.Ct. 317, 49 L.Ed. 610, the court said:

'But it is a mistake to say, as the petitioner does, that if the man on the spot, even an expert, does what his judgment approves, he cannot be found neligent. The standard of conduct, whether left to the jury or laid down by the court, is an external standard, and takes no account of the personal equation of the man concerned. The notion that it 'should be coextensive with the judgment of each individual' was exploded, if it needed exploding, by Chief Justice Tindal, in Vaughan v. Menlove, 3 Bing. N. C. 468.'

The following cases support the doctrine announced: Wolff Manufacturing Co. v. Wilson, 152 Ill. 9, 38 N.E. 694, 26 L. R. A. 229; McKennan v. Omaha & C. B. Ry. Co., 97 Neb. 281, 149 N.W. 826; 20 R. C. L. p. 26; 2 Thompson on Negligence, § 1669; 29 Cyc. 521; Labatt on Master & Servant (2d Ed.) [201 P. 785] p. 2413. The case of Olson v. Erickson, 53 Wash. 458, 102 P. 400, although not directly in point, is so in substance.

In this connection we may discuss the following instruction requested by the appellant and refused by the court:

'I instruct you that contributory negligence is not necessarily the same as mere mistake of judgment. A person may make an error of judgment which may in some degree contribute to his injury, and he may yet be free from contributory negligence. In determining in this case whether the plaintiff's daughter was guilty of contributory negligence, the test is whether she acted as an ordinarily careful and prudent person would have acted under all the circumstances which surrounded her at the time and place of the collision; and in this connection you have the right to take into consideration her familiarity, or lack of familiarity, if any has been shown, with the location and situation of the defendant's street car tracks and the several streets at the place of the accident. Her guilt or innocence of contributory negligence is not necessarily based upon the accuracy of her judgment.'

For the most part this requested instruction correctly stated the law on the subject. But that portion of the request reading as follows was improper:

'* * * And in this connection you have the right to take into consideration her familiarity, or lack of familiarity, if any has been shown, with the location and situation of the defendant's street car tracks and the several streets at the place of the accident.'

Familiarity, or lack of familiarity, by the driver of the automobile, with the location, could have nothing to do with the subject. Consequently, the court did not err in refusing to give the request.

Appellant also claims that the following instruction given by the court was error:

'You are further instructed that if you find from the evidence that the plaintiff's daughter was guilty of contributory

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