Zettler v. Seattle , 153 Wash. 179 ( 1929 )

I am compelled to dissent from the majority opinion, for the reason that the court decides, as a matter of law, that "respondent's negligence had not ceased," and that "respondent was guilty of contributory negligence in failing to keep a lookout and act accordingly." In the case of Mosso v. StantonCo., 75 Wn. 220, 134 P. 941, L.R.A. 1916A 943, this court, in discussing the doctrine of last clear chance in a case where a pedestrian had been injured by being hit by an automobile, said:

"III. It is also claimed that the evidence shows that both parties were concurrently negligent up to the time of the accident, and that, therefore, the last clear chance rule cannot apply. Whether the respondent negligently failed to look for approaching vehicles before entering upon the street was clearly a question for the jury. But assuming that he did fail to look, he was not negligent, as a matter of law, in failing to be continuously thereafter looking to ascertain if auto-cars were approaching from behind him, especially impeded as he was by the sack of grain upon his left shoulder.Lewis v. Seattle Taxicab Co., 72 Wn. 320, 130 P. 341;Ludwigs v. Dumas, 72 Wn. 68, 129 P. 903; Hillebrant v.Manz, 71 Wn. 250, 128 P. 892, 895, and cases there cited. Even assuming, therefore, that he was negligent in the first instance, it was for the jury to say whether his negligence continued up to the time of the accident, or whether it terminated after he got into the street so as to be in plain view of drivers of auto-cars."

In the instant case, it was respondent's duty to remove his automobile from the street car track, if it was possible for him to do so, and the question of whether or not he was guilty of contributory negligence in so doing was one for the jury. Blashfield Cyclopedia of Automobile Law Vol. 1, p. 782, § 36. It seems to me that the question of respondent's contributory negligence, when it began and when it ceased, was one of fact for the jury, and, it being admitted that the instruction given was legally correct, it seems to me that it was clearly applicable to the facts in this case under the rule announced in the citations above given.