Smith v. Bratnober ( 1936 )

I am unable to concur in the majority opinion in this case in one respect, that is, with reference to the matter of the last clear chance. In his amended complaint, respondent alleged that, after the breaking of the steering gear of his car, which had been proceeding in a southerly direction along the west side of the highway, the machine came to a stop facing north on the east side of the road, with its front end resting against the guard rail and the rear end one or two feet out therefrom. He further alleged that he had just stepped down from the car on the right side thereof when appellant's automobile, approaching from the north, struck the left rear of his car, injuring him. As one of the grounds of appellant's negligence, respondent alleged that

". . . the operator of defendant's automobile failed and neglected to stay on the right side of the road, when by so doing the collision could have been avoided."

Respondent's car, then, was facing northerly, although the headlights were pointing somewhat off the road to the right, entirely on its right-hand side of the road as it was facing.

Concerning the accident, respondent testified:

"Q. When you started to get out of the car — you started to get out I believe you said over near the guard-rail. A. On the right-hand side? Q. Yes, over near the guard-rail, on the right-hand side? A. Yes, sir. Q. Where did you walk? A. I walked only about four steps to get around the car. Q. When you walked down there what did you do? A. I got down to the back end of the car. Q. And what happened immediately when you got to the back end of the car? A. Well, I looked up and I seen some headlights. Q. And then what happened? A. And then I just raised my hand, and that is all I can tell you about it. Q. Was your car smashed into as you were back of it there? A. Yes, sir."

On cross-examination, respondent told the same story. Respondent alleged in his amended complaint and testified on the trial that, under the law of the road, his car, facing as it was when it came to a stop, was on its right side of the highway, and that at all times it remained east of the center line. This being true, according to his complaint and testimony, respondent was not negligent in any particular (his car having broken down and being incapable of movement under its own power), and in the absence of negligence on his part, the doctrine of last clear chance was not applicable. Huber v. Hemrich Brewing Co., ante p. 235, 62 P.2d 451. True, according to other evidence in the case, respondent's car was standing across the center line of the highway, but this was not respondent's theory. Respondent could not have been mistaken as to the point at which his automobile came to rest. He identified the position of the car, and his position, with meticulous detail.

The doctrine of last clear chance has been adopted to prevent injustice in certain cases and to allow an escape from the contributory negligence doctrine when it clearly appears that, in spite of such negligence on the part of the plaintiff, he should, if the trier of the facts so finds, be allowed to recover. I am of the opinion that, when a party to an action unequivocally pleads and testifies to a state of facts concerning which he cannot be mistaken, and when, under his testimony, if true, the last clear chance doctrine is not applicable, he cannot claim the benefit of that doctrine on the theory that his sworn pleading was mistaken and his evidence false and that the jury should not believe him. Such a doctrine would allow one claiming relief to avail himself of a rule established for his benefit, while at the same time maintaining a state of facts under which the rule is not applicable.

In the case of Belkin v. Skinner Eddy Corp., 119 Wash. 80,204 P. 1046, on appeal from a judgment in favor of a plaintiff in a personal injury suit, this court held that an instruction submitting to the jury the "momentary forgetfulness" doctrine was erroneous. Considering this instruction, the court used the following language:

"One of the objections made to this instruction is that there is no testimony upon which to base it. We are required to hold that this objection is well taken. We have very carefully read the respondent's testimony as it appears in the statement of facts, and we are unable to find any intimation that he was injured because he momentarily forgot the dangers or defects of which he complains. On the contrary, the testimony shows that he did not know whether there were two or three planks on the staging upon which he was working, and that he did not know that the planks along the side of the hatch where he was working were in part pushed under the deck of the boat, and that he did not know that there was no planking at the end of the hatchway where he fell. Manifestly, if he did not know of these defects or dangers, he could not have forgotten them. Nor can we say that this instruction was harmless. At best, the doctrine of ``momentary forgetfulness' has a tendency to defeat and annul the doctrines of contributory negligence and assumption of risk and should not be applied to all cases and circumstances, and where it is applied it is manifest that it is a doctrine which must clearly influence the case and the conclusions which may be reached by the jury. In other words, when this doctrine is applied to a case it is of vital importance."

While the questions considered in the case cited involved a rule other than that of last clear chance, the reasoning of the court in the language quoted is, in my opinion, applicable to the question now before us.

In the case of Lee v. Gleason Co., 146 Wash. 66,262 P. 133, the trial court had given the jury an instruction which this court states "was obviously intended to cover the doctrine of ``last clear chance.'"

This instruction was held erroneous, this court saying:

"If the respondent's theory is correct, the deceased was not guilty of negligence in any respect. Before the doctrine of last clear chance can be applied, it is one of the essentials that the person injured must have been negligent and have thereby been put in a position of danger. MacDonald v. Seattle, 126 Wash. 1,217 P. 39."

We have repeatedly laid down this rule, which is beyond question sound.

The supreme court of South Dakota, in the case of Miller v.Stevens, 63 S.D. 10, 256 N.W. 152, said:

"However, entirely regardless of the weight or credibility of Johnson's (a witness called by the plaintiff) testimony, we believe it is the better and the sounder view that respondent cannot, under the circumstances shown by this record claim the benefit of a version of relevant facts more favorable to her contentions than she herself has given in her own testimony. As well stated by Lumpkin, J., in Western A.R. Co. v. Evans (1895), 96 Ga. 481, 23 S.E. 494, 495, ``Every witness is under a solemn obligation to tell the truth, the whole truth, and nothing but the truth; and this obligation is especially binding upon one who seeks, by his own testimony, to establish a substantial right against another. Railway Co. v. Beauchamp, 93 Ga. 6,19 S.E. 24. It surely can never be unfair to a party laboring under no mental infirmity to deal with his case from the standpoint of his own testimony as a witness.'"

In 50 A.L.R. 973, the rule is stated in the following language:

"A plaintiff of average intelligence, in full possession of his faculties, who testifies to facts peculiarly within his knowledge, which, if true, utterly destroy his case, is not entitled to go to the jury merely because defendant contradicts such facts."

In the case of Virginia Electric Power Co. v. Vellines,162 Va. 671, 175 S.E. 35, the supreme court of appeals of Virginia, on an appeal from a judgment in plaintiff's favor in an action for personal injuries, reversed the judgment, using the following language:

"These somewhat extended excerpts from plaintiff's testimony are made necessary by the fact that the decision of this case turns upon his evidence. He is bound by his account of what he saw and did. Massie v. Firmstone, 134 Va. 450, 114 S.E. 652, and cases which have followed it. A plaintiff who has no case upon his own evidence has no case at all. He said that he looked and saw no car coming, and that none was in sight when he signaled his purpose to turn into 8th street, for he looked and saw none until it was immediately upon him. He, at least, cannot complain because we accept his statements as true."

This rule should be applied in the case at bar, in so far as the instruction concerning last clear chance is concerned. This doctrine is applicable only in a limited class of cases, and must be used with discrimination. In my opinion, under respondent's pleadings and testimony, the trial court erred in submitting to the jury the question of last clear chance, and the judgment appealed from should be reversed and a new trial ordered.

MAIN, MITCHELL, and BLAKE, JJ., concur with BEALS, J.