Miller v. Edwards

In Lubliner v. Ruge, 21 Wash. 2d 881, 153 P.2d 694, the trial court refused to permit appellant's (plaintiff's) attorney to state to the jury and prove that respondent (defendant) had been drinking intoxicating liquor. The trial court based its ruling upon the fact that appellant had not alleged in his complaint that the respondent, just before the time of the accident, had been drinking intoxicating liquor. In the instant case, the complaint did not make any charge that appellant had been drinking intoxicating liquor of any kind. In passing upon the question, this court in the above cited case stated:

"In deciding the question of pleading, we must take into consideration the foregoing rule; Rem. Rev. Stat., Vol. 7A, § 6360-119 [P.C. § 2696-877], making it unlawful to operate any vehicle upon a public highway while under the influence of or affected by the use of intoxicating liquor; the general rule that a pleading should allege ultimate facts, and not contain evidentiary matter; and that the adverse party should be apprised of that with which he is charged as a basis of liability with sufficient certainty so as to enable him to prepare for and meet it at the trial of the action. A violation of the statute is negligence as a matter of law. When the violation of a statute is relied upon as a basis of negligence, such statute need not be set forth in the pleading, but the facts making the statute applicable must be alleged. Anderson v. Pantages Theatre Co.,114 Wash. 24, 194 P. 813. Evidence of being under the influence of or affected by the use of intoxicating liquor while driving an automobile or while doing any other act likely to do harm, is very damaging to one charged with negligence, and he should be informed of such charge so as to be able to gather and submit proof to the contrary. We, therefore, state the rule to be that, when a party to an action contemplates submitting affirmative proof that, by reason of the use of intoxicating liquor, there was thereby a contribution to some act or omission which it is alleged constituted negligence, such fact must be pleaded by such party. This was the ruling of the trial judge, and he was correct in such action."

The fact that Helen Edwards had visited a beer tavern was not a reason for asking her if she had been drinking. It is a well-known fact that many nondrinkers visit taverns in the company of friends. The majority opinion effectually does away with the rule announced in the cited case. Clearly, respondent's counsel had the right to ask appellant concerning her activities immediately preceding the accident, but the mere fact that she had been in a beer tavern did not give the right to inquire about drinking. The evidence as to the visit to the tavern was only incidental, while that relating to drinking intoxicating liquors went to the very essence of the charge of negligence. It certainly prejudiced the jury against her.

The court's instruction No. 7 reads as follows:

"The jury is instructed that the statutes of the State of Washington provide that where traffic control signals are not in place or in operation, the operator of a vehicle shall yield the right of way, slowing down or stopping, if need be, to so yield to any pedestrian crossing the roadway within a marked cross-walk of any intersection."

The majority opinion holds that the instruction was correct because it was given in the words of the statute. As I view the situation, the giving of an instruction in the words of the statute is not always correct. In Martin v. Hadenfeldt,157 Wash. 563, 289 P. 533, this court had before it the interpretation of the statute which defines the rights and duties of drivers approaching a public highway intersection. Rem. Rev. Stat., § 6362-41 (14). In that case, this court did not hold that an instruction relative to the rights of the parties should be in the words of the statute, but held that the rights of way, as given by the statute, were relative, and that the duty to avoid accidents or collisions rested upon both drivers; further, that the primary duty of avoiding accidents rested upon the driver on the left. That rule should be applied to the statute under consideration in the instant case. The rights of pedestrians and automobile drivers are relative — that is, both must avoid accidents if possible, the primary duty, of course, being upon the driver of the automobile.

In Tomchak v. Poland, 185 Wash. 101, 52 P.2d 1262, this court stated:

"Under similar circumstances, judgment on a verdict for the plaintiff was reversed and the action ordered dismissed in Jonesv. Wiese, 88 Wash. 356, 153 P. 330, because it was held as a matter of law, that plaintiff's contributory negligence precluded any recovery. In that case, it was said:

"`When about to attempt a street crossing at such a place where danger is imminent and constant, pedestrians must take some precautions to guard against it. Something must be done to insure safety, and the failure to do so is such negligence as will prevent recovery in case of injury. As was said in Cole v.Northern Pac. R. Co., 82 Wash. 322, 144 P. 34:

"`"It is not necessary to here say what precautions are necessary. It cannot be denied that something must be done to insure safety."

citing cases announcing the rule in similar language.'

"To the same effect was the decision setting aside a judgment on a verdict and ordering the action dismissed in Silverstein v.Adams, 134 Wash. 430, 235 P. 784, the holding in that case being tersely stated in the syllabus, as follows:

"`A pedestrian was guilty of contributory negligence in stepping from the curb to cross a street directly in front of an approaching automobile, with lights burning, where there was nothing to prevent his seeing the car.'"

In the Lubliner case, supra, this court in discussing an objection relative to an instruction, said:

"On this basis the instruction was correct, because even though a driver of an automobile unlawfully drives against a red light, a pedestrian cannot be excused if he negligently steps into its path."

These cases, in my opinion, have laid down the rule that the rights of car drivers and pedestrians at intersections are relative, and that the jury should be informed in the cases similar to the one at bar. Otherwise, if the instruction is given in the words of the statute, the driver of the automobile becomes the insurer of the safety of the pedestrian.

A new trial should be granted.

ROBINSON, J., concurs with SIMPSON, J.