Shipley v. Nelson

• Citation: 121 Wash. 39,207 P. 1046
• Decision Date: 15 July 1922
• Docket Number: 17069.
• Parties: SHIPLEY et ux. v. NELSON.
• Court: Washington Supreme Court

207 P. 1046

121 Wash. 39

SHIPLEY et ux. v. NELSON.

No. 17069.

Supreme Court of Washington

July 15, 1922

Department 2.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by Irwin S. Shipley and wife against N. P. Nelson. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Morris B. Sachs, of Seattle, for appellant.

Coleman & Fogarty, of Everett, for respondents.

MACKINTOSH J.

The complaint in this action alleged that----

'The defendant, N. P. Nelson, also traveling south driven an automobile at a high and reckless rate of speed and going uphill, in broad daylight, so carelessly, negligently and recklessly managed and operated said automobile that the same was driven over and upon the plaintiff, Irwin S. Shipley,' thereby injuring Shipley.

The trial of the case resulted in a verdict in favor of the plaintiff, from which the defendant has appealed.

A reading of the testimony in the case discloses sufficient evidence to justify the trial court's refusal to grant defendant's motion to dismiss the action at the close of the plaintiffs' case, and also its denial of the defendant's motion for judgment notwithstanding the verdict.

Among other instructions which the court gave the jury was the following:

'It is proper, I think, in this connection to instruct you upon another provision of the law, which requires any one using a motor vehicle upon the public roads or highways to be equipped with a proper bell, horn or other signal device in order to warn a person in case of danger. The complaint in this case does not specify that as one of the grounds of negligence, but it is a proper matter to be taken into consideration in determining whether or not the defendant in this case used the proper care in approaching the plaintiff and his bicycle when he was approaching him on the highway so that, if you find from a preponderance of the evidence that under the circumstances of this particular case it would have been proper or reasonable for the defendant to given warning of his approach in order to avoid the injury or danger to the plaintiff, then it would be his duty to give such warning as to notify the plaintiff of his approach, and if he failed to do that it would be a lack of reasonable care in the operation of his machine.'

The giving of this instruction is assigned as error for the reason, as argued, that the allegation of negligence pleaded by the plaintiff was specific, and referred only to 'high and reckless rate of speed.' While it is true that, as we have held in Albin v. Seattle Electric Co., 40 Wash. 57, 82 P. 145, and Ennis v. Banks, 88 Wash. 237, 152 P. 1037, and Eddy v. Spelger & Hurlbut (Wash.) 201 P. 898, where there is a general allegation of negligence in a complaint which is followed by a specification of the acts of negligence complained of, or where negligence is specifically set out without any general allegation, the evidence must be confined...