Suell v. Jones

• Decision Date: 12 June 1908
• Citation: 96 P. 4,49 Wash. 582
• Parties: SUELL v. JONES.
• Court: Washington Supreme Court

96 P. 4

49 Wash. 582

SUELL v. JONES.

Supreme Court of Washington

June 12, 1908

Appeal from Superior Court, Pierce County; George T. Reid, Judge.

Action by Anderson Suell against Charles H. Jones. Judgment for plaintiff. Defendant appeals. Affirmed.

E. R York, and T. W. Hammond, for appellant.

Ellis Fletcher & Evans and Boyle, Warburton, Quick & Brockway, for respondent.

RUDKIN J.

On the morning of June 18, 1906, the plaintiff and another employé of the city of Tacoma were engaged in sweeping Pacific avenue, one of the public streets of that city. It is customary for men thus employed to do their work facing the direction from which teams and vehicles are required to come and, in accordance with this custom, the plaintiff, who was sweeping the east side of the avenue, worked with his face to the south, while his companion, on the opposite side of the street, worked with his face to the north. As the plaintiff was thus engaged in the discharge of his duties, an automobile driven by the defendant struck him in the back, causing permanent injuries, for which a recovery was sought in this action. From a judgment in favor of the plaintiff, this appeal is prosecuted.

The first error assigned is the admission in evidence of an ordinance of the city of Tacoma regulating traffic on the public streets, approved September 6, 1906. Section 1 of this ordinance provides that 'on all streets running north and south, or northerly and southerly [such is Pacific avenue] vehicles driven south or southerly shall be kept to the west or westerly side of the center of such streets, and vehicles going in the opposite direction on such streets shall be kept to the east or easterly side of such streets.' The objection to the ordinance was that it was repealed by a later ordinance regulating the use and rate of speed of automobiles, approved June 12, 1907. The later ordinance has no repealing clause, but it is contended that the following provision contained therein works a repeal of the earlier ordinance by implication: 'The driver or operator of any automobile or motor vehicle shall be governed by the commonly accepted rules of road traffic, by turning to the right when meeting vehicles or teams or persons moving or heading in the direction opposite to that in which he is moving, and by turning to the left-hand side in passing vehicles or teams or persons moving or heading in the same direction in which he is moving, and shall cause such automobile or vehicle to be moved in a careful manner so as not to endanger or inconvenience any person.' Repeals by implication are not favored in law, and it can be seen at a glance that there is no necessary conflict between the provisions of the two ordinances. A provision requiring a driver to pass another in a given manner is not in conflict with an additional requirement that he shall keep on a certain side of the street while going in a given direction.

The admission of mortality tables in evidence is the next error assigned. The ground of the objection was that the age of the respondent was not shown; that such tables are based on the lives of men acceptable for insurance, not on the lives of mankind in general; and that such tables have no application to negroes. The testimony showed that the respondent was a negro born in slavery, and that he had no very definite knowledge as to his age, except that he was between 50 and 56 years old. Mortality tables covering the expectancy of life between the ages of 54 and 60 were offered in evidence; and it was for the jury to determine the age of the respondent and the year of the tables that should apply. The record does not disclose the particular tables received in evidence, so that we cannot say that they were based on the lives of those acceptable for insurance only. We know that the Carlyle Tables, the Northhampton Tables, and others are based on the entire population of given localities for a given period, and we know that many others are constructed from statistics based on the experience of one or more insurance companies. For this reason, we are unable to say that the tables offered in evidence belong to the one class or...