Spurrier v. Front Street Cable Ry. Co.

• Decision Date: 03 February 1892
• Citation: 3 Wash. 659,29 P. 346
• Parties: SPURRIER v. FRONT ST. CABLE RY. CO.
• Court: Washington Supreme Court

29 P. 346

3 Wash. 659

SPURRIER v. FRONT ST. CABLE RY. CO.

Supreme Court of Washington

February 3, 1892

Appeal from superior court, King county; J. A. STRATTON, Judge.

Action by Elizabeth J. Spurrier against the Front Street Cable Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

STILES J., dissenting, on the ground that the injuries were caused by unavoidable accident.

J C. Haines, for appellant.

Will H. Thompson, Eduard P. Edsen, and John E Humphries, for appellee.

DUNBAR, J.

This action was brought to recover damages in the sum of $3,000 alleged to have been sustained by the plaintiff in consequence of a collision between a street-car of the defendant and the wagon of the plaintiff on Second street in the city of Seattle, whereby the wagon was broken, and the horses, and property in it, injured, and plaintiff herself received bruises and other personal injuries. It was claimed by the plaintiff that while proceeding up Second street, where there was a steep hill, her horses got out of breath, stopped, and refused to pull the wagon and load up the hill, and that, in consequence of the refusal on the part of the horses to pull, the wagon was left upon the railroad track, and plaintiff could not get it off. And while the wagon and horses were so standing upon the track the cable-car of the defendant came over the hill, and failed to stop, and in consequence the damages complained of arose. The defendant denied any negligence on its part, and alleged contributory negligence on the part of the plaintiff. Verdict was returned in favor of the plaintiff for $1,000. Judgment was entered, and the cause appealed.

The principal contention of the appellant in the argument of the case here is that the court erred in refusing to give certain instructions asked by the defendant; and we will examine that contention first. Of course they will have to be examined with reference to the instructions which the court gave the jury on its own motion. The instructions asked for by defendant were very voluminous, and made up largely of statements of what is claimed by the parties to the action, comments upon the law, and the justice and reason of the law; statements that are so general that they would tend to confuse, rather than to assist, the jury in reaching a correct conclusion under the law. The charge asked is so lengthy that want of time will prevent us from reviewing it in detail; but an investigation of it shows that the same idea is repeated many times in different sections of the charge; that in fact the greater part of the instructions asked by defendant was substantially given by the court; that the idea was expressed by the court in plain and compact language, and the jury doubtless fully understood it; and that is all the defendant had a right to ask. If this court finds that a jury has been properly instructed on the law, it will not reverse the judgment because the instructions were not couched in any particular form of words.

There were some instructions asked, however, which the court refused to give, either in form or substance; and those we will notice in particular. The following instruction was asked: "The plaintiff in this case claims that the injuries and damages suffered by her were caused by the negligence of the defendant, and that she herself was guilty of no want of care or negligence which contributed in any degree to produce the injury or damage. I instruct you that it is the law that the plaintiff cannot recover in this case unless she has established both of those propositions by a fair preponderance of the evidence, that is to say negligence on the part of the defendant, and the absence of contributory negligence on her part. It is a well-settled rule that, where an injury is caused by the mutual fault or the concurring negligence of both parties, there can be no recovery by her for any damages resulting from such injury, and therefore I further instruct you that if it appears from the evidence that the plaintiff was guilty of any negligence whatever which contributed to cause the injury complained of in this action, or concurred with the negligence of the defendant, if any, in producing it, then your verdict must be for the defendant." The latter part of the instruction is too broad. The person charged with the contributory negligence cannot be held to any greater degree of care than the company is. But the defendant asks the court to charge the jury that the defendant cannot recover if she is guilty of "any negligence," whatever, while in demand 8 he asks the court to charge the jury that the railroad company is only held to "exercise ordinary care and caution." The doctrine of contributory negligence has been carried to a considerable extent by some of the courts, but we think never quite to this extent. Due and reasonable care and caution were imposed upon both the plaintiff and the defendant by the instructions of the court; and, while many courts have undertaken to elaborate these expressions, and have occupied many pages in defining them, it is doubtful if any instruction, however elaborate, could convey to the jury a better understanding of the law, and of the rights of the parties under the law, than is conveyed by the instructions of the court in this case. "Due and reasonable care and caution," said the court, "means that degree of care and caution which might reasonably be expected of a reasonably prudent person under the circumstances surrounding him or her at the time in question." This definition, we think, is terse, comprehensive, and correct. The first part of the instructions asked raised the question whether or not contributory...