Ross v. Rose

• Decision Date: 03 January 1920
• Docket Number: 15549.
• Parties: ROSS et ux. v. ROSE.
• Court: Washington Supreme Court

186 P. 892

109 Wash. 273

ROSS et ux. v. ROSE.

No. 15549.

Supreme Court of Washington

January 3, 1920

Department 2.

Appeal from Superior Court, Columbia County; Chester F. Miller Judge.

Action by J. R. Ross and another against Mary Rose. Judgment for plaintiffs, and defendant appeals. Affirmed.

Leon. B. Kenworthy, of Dayton, for appellant.

Will H Fouts, of Dayton, and Gose & Crowe, of Walla Walla, for respondents.

TOLMAN J.

This is an action for personal injuries. From a verdict and judgment for $500, in favor of respondents, the case is brought here on appeal. It appears that on December 8, 1917, respondents were driving one horse hitched to a single buggy along the public road on their way from Dayton to their home. As they crossed the bridge over the Touchet river, and drove onto the approach or fill on the far side, they saw appellant's automobile rapidly approaching them around a bend in the road, some 300 or 400 feet distant. They allege in their complaint, and testify, that the automobile was coming at such a high and excessive rate of speed as to constitute negligent and reckless driving, especially so since they were on the narrow approach to the bridge not exceeding 20 feet in width, with a sheer drop of some 4 or 5 feet on either side with no railing or barrier to prevent horse and vehicle from going over the edge. Both respondents testified that the automobile was not seen by them until they had passed off the railed-in bridge, onto the unrailed approach; that it was then distant from them about 110 steps, and that it did not stop or slacken in speed until after it had passed them and the accident had occurred; that about the instant they saw the automobile the horse they were driving threw up its head, began to shy, and the husband was fully occupied all the time in keeping a firm hold on the reins and trying to control the horse; that the horse and buggy advanced about their length in the time intervening between when they first saw the car and the happening of the accident; that as the car approached it made 'a terrible racket,' and, when it was still distant as she estimated 30 feet, the wife threw up her hands and cried, 'Whoa,' but the car came on with undiminished speed and noise, and the horse, still shying, made a lunge, and horse, buggy, and occupants went over the edge of the embankment apparently just as the car dashed by.

Appellant pleaded, in addition to the usual defenses, that the horse driven by respondents was, and was known by them to be, 'of a shy, skittish, excitable, and unruly nature,' and that it was inclined on the smallest pretext to bolt, plunge, and become unmanageable and uncontrollable.

Errors are assigned upon the refusal to grant a motion for nonsuit, made at the proper time, the refusal to grant a motion for judgment non obstante veredicto, and a motion for a new trial, and upon the giving and refusing of certain instructions.

From the simple statement which has been made, taken, of course, from respondent's testimony, and disregarding for present purposes the evidence of the defense, it is apparent that there was evidence to go to the jury upon the question of whether or not appellant was complying with the statute (section 27, c. 142, Laws 1915), which reads as follows:

'Every person driving or operating a motor vehicle on approaching any vehicle drawn by a horse or horses or any horse upon which any person is riding, shall operate, manage and control such vehicle in such manner as to exercise reasonable precaution to prevent frightening of any such horse or horses and to insure the safety and protection of any person riding or driving the same. If such horse or horses appear frightened, the person in control of said motor vehicle shall reduce the speed thereof, and

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