Singer v. Martin
| Decision Date | 10 May 1917 |
| Docket Number | 13532. |
| Citation | 164 P. 1105,96 Wash. 231 |
| Parties | SINGER v. MARTIN et al. |
| Court | Washington Supreme Court |
Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.
Action by Tom Singer against I. Martin and the Pacific Casualty Company. From a judgment for plaintiff, defendants appeal. Reversed, and cause remanded for new trial.
Geo McKay and H. S. Noon, both of Seattle, for appellants.
Benjamin M. Levine, Willett & Oleson, and John A. Soule, all of Seattle, for respondent.
Action to recover damages for personal injuries. Defendant Martin owned an automobile which he operated as a jitney in the city of Seattle, the car being driven by an employé. On June 6 1915, while plaintiff was a passenger on the car, it was proceeding east on the south side of Pike street, when, at or near the intersection of that street and Ninth avenue, it collided with another car driven by one Harald. As a result of the collision plaintiff received the injuries of which he complains. The Pacific Coast Casualty Company, being surety on Martin's bond given pursuant to Laws 1915, c. 57, p. 227 (Rem. Code, § 5562-37 et seq.), was made a party defendant. From a verdict and judgment in favor of the plaintiff, both defendants appeal.
The evidence was sharply conflicting as to the speed of both cars, as to whether the collision occurred immediately at or a short distance to the east of the intersection, and as to which of the two cars was actually driven against the other. A review of the evidence on these questions would serve no purpose. The conflict presented made them questions for the jury under proper instructions.
Appellants urge that the court erred in refusing to give certain requested instructions. Several of these were, in substance, covered by the instructions given. In others were so combined the sound and the unsound that they could not be properly given. One of these was as follows:
The first part of this request is unobjectionable, and doubtless would have been given had it been proffered as a separate instruction. But when an instruction partly good and partly bad is offered, the court is not required to weed out and reject the bad and give the good on pain of a reversal. Ramm v. Hewitt-Lea Lumber Co., 49 Wash. 263, 267, 94 P. 1081 .
The part which we have italicized is palpably bad. The excessive speed would be enough, without more, if it alone brought the car to the place of collision when that place was occupied by another car. The argument that, without the qualification requested, the jury might have found excessive speed, at an antecedent time and in another place, the proximate cause, is entirely too refined. Neither the first part of this requested instruction nor any instruction given was reasonably capable of such a construction.
The last sentence requested is even more objectionable. It invokes one phase of the rule of last clear chance, a doctrine wholly inapplicable on the facts here as between the carrier and his passenger. This last defect appeared in several other requested instructions. So far as this instruction correctly stated the law it was covered in general terms by the instructions given. The court's first instruction stated the nature of the action. The second enumerated the charges of negligence, namely, carelessness in operating the jitney without having it under control, unlawful and excessive speed, negligent driving against the Herald car. The third correctly defined the degree of care required of a common carrier. The fourth defined unlawful speed. The fifth charged that, if the driver of the jitney failed 'in any of the particulars charged' to observe the required degree of care, defendant would be liable regardless of any negligence on Herald's part, 'if the accident would not have happened except for defendant's driver's carelessness.' The sixth was as follows:
'The burden of proof is upon the plaintiff in this case to show by the greater weight of the evidence that the defendant's driver was guilty of negligence in the manner charged and that such negligence contributed to and was the proximate cause of the collision.'
Taken as a whole, these instructions gave to the jury the law of proximate cause as applied to excessive speed as well as to every charge of negligence. But appellants complain because a definition of proximate cause was not given.
The answer is that no such instruction was requested.
Another instruction offered and refused was as follows:
'If you find from a fair preponderance of the testimony that the jitney was proceeding east along the south side of Pike street, and that the Herald car was approaching from the north along Ninth avenue, the driver of the jitney had the right of way, and it was the duty of the driver of the Herald car to keep clear of the jitney's course, and the driver of the jitney had the right to assume that the driver of the Herald car would keep out of his way till he had notice that the driver of the Herald car would not or could not keep out of his way; till he had such notice it was not negligent for the driver of the jitney to go ahead.'
No statute is cited nor was any city ordinance pleaded or proved declaring this rule as to right of way. But assuming this a proper statement of the law of the road, and that the refusal of the court to so instruct might be soundly urged as error if this were an action between the owners of the respective cars, it was not error in this case.
Appellant Martin as a common carrier owed to respondent as his passenger the duty of exercising the highest degree of care compatible with the practical operation of the car. That duty would not be met as a matter of law by a mere observance of the law of the road. His negligence, if any, as between him and his passenger, is to be measured by his duty as a common carrier, not by his duty to other users of the highway.
The law in force at the time of the accident (Laws 1905, p. 295, § 10; Rem. & Bal. Code, § 5571) limited the speed of automobiles to 4 miles an hour over crossings or crosswalks within the limits of any city or village when any person is upon the same, and between intersections to 12 miles per hour in thickly settled districts, and to 24 miles an hour outside of such districts. By an act taking effect after the accident, but before trial, that law was repealed. Laws 1915, c. 142, p. 397 (Rem. Code, § 5562-35). In his charge the trial court stated the permitted speed over crossings and intersections correctly as 4 miles an hour, and between intersections as 20 miles an hour. No complaint, however, is made of this discrepancy. The court then instructed the jury to the effect that any person driving an automobile over an intersection faster than 4 miles an hour, or between intersections faster than 20 miles an hour, would be guilty of negligence as a matter of law. This is assigned as error. Appellants contend that the speed regulation of the repealed statute furnished a rule of evidence merely, which could not survive, for any purpose, its repeal.
Both reason and authority, however, sustain the view that the statute in force at the time created a duty entering into the contract of carriage, so that the repeal could not operate retrospectively. This exact question was decided contrary to appellants' contention in James v. Oakland Traction Co., 10 Cal.App. 785, 103 P. 1082. In that case the injury sued for was to a passenger on one of defendant's street cars. At the time of the accident a statute applicable to the place of the accident limited the speed of street cars to eight miles an hour. After the accident, but before the trial, the statute was amended so as to eliminate the provision as to the speed of cars. The court instructed the jury, in substance, that a speed in excess of eight miles an hour was negligence as a matter of law. Upon an appeal the defendant contended, as contend appellants here, that the repealed provision was merely a rule of evidence which could be changed, and when changed it ceased to apply even to existing causes of action. The appellate court refuted that view by an argument so cogent that we quote from it at some length:
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