Ulve v. City of Raymond , 51 Wash. 2d 241 ( 1957 )

Finley, J.

(concurring specially in the result) — I concur in the result and agree substantially with the reasons therefor as stated in the majority opinion. However, I feel compelled to register disagreement with the majority’s discussion of the purported linguistic difference, or the legal distinction, between the phrases degree of care and amount of care. I fully recognize and appreciate the fact that numerous judicial decisions, as well as Prosser and other legal authorities, attempt to distinguish between the aforementioned phrases in connection with their use in jury instructions.

The decisions of this court in Hubbard v. Embassy Thea-tre Corp., 196 Wash. 155, 82 P. (2d) 153, and in Ewer v. Johnson, 44 Wn. (2d) 746, 270 P. (2d) 813, certainly recognize and attempt to clarify orthodox, legalistic reasoning in this area of negligence law. In other words, I must concede that there is subtle legal dogma supporting the distinction, which the majority accord to the two phrases. On the other hand, it seems to me that the semantic difference between the two phrases is indeed slight — especially in the minds of laymen, and it is laymen who make up the juries.

Referring to the matter under discussion, Steinert, J., in his dissent in the Hubbard case, supra, commented:

“It is sufficient to say that it would require more than ordinary perceptive powers by anyone not skilled in legal phraseology to assign any difference of meaning between the two words as applied to a case of negligence. I do not believe that it would occur, even to a lawyer, that there was any distinction, unless his wit had been sharpened by previous experience.”

Judicial emphasis relative to the dubious legal distinction between the two phrases unquestionably can be confusing and misleading to non-legally-conditioned lay minds in jury cases. Past judicial recognition appears to me to be no justification for perpetuating this purely conceptual device which increases rather than diminishes the difficulties and defects in the operations of the machinery of justice.

I agree with the comment in the majority opinion that

“If the trial judge is compelled, by the circumstances of the case before him, to instruct upon the amount of care which must be exercised under the circumstances, the path appears to be both narrow and ill-defined. On the one hand is the pitfall of commenting on the evidence; on the other, of emasculating the rule.”

I am convinced that references by a trial judge to either of the dubious phrases in an instruction to a jury would tend to change and to distort rather than clarify and explain the basically simple requirement of the law: that a person exercise such care as a reasonably prudent or ordinarily prudent man would exercise under the circumstances. Certainly it appears to me that an effort by a trial court to distinguish the phrases in terms of what was said in Hubbard v. Embassy Theatre Corp., supra, or in Ewer v. Johnson, supra, would be confusing generally to lay minds, and thus to most jurors. Of course, in some areas — e.g., the passenger-carrier relationship — the law requires more than ordinary care, and instructions necessarily must be tailored accordingly.

I believe it would be fair to both parties litigant, and certainly more understandable to jurors, if instructions in the areas of the law in which ordinary care is required did not go beyond a simple general statement of the basic requirement of the law: that a person is required to exercise such care as a reasonably prudent or ordinarily prudent man would exercise under the circumstances.

In connection with the foregoing comments, it appears to me that, if the evidence in particular cases indicates circumstances which counsel regard as noteworthy, these may be called to the attention of the jury and emphasized by counsel in closing arguments.

Ott, J., concurs with Finley, J.