Minor v. Stevens , 65 Wash. 423 ( 1911 )

Dunbar, C. J.

(dissenting) — If I understand the majority opinion, the judgment is reversed because the jury, in response to the following special interrogatory: “Could the plaintiff, in the exercise of his ordinary faculties, have heard the horn or noise of the machine, seen the lights, and observed the approaching vehicle by glancing in the direction from which the noise and lights of the automobile came?” answered : “We do not know;” on the theory, as stated, that the answer left the issue of contributory negligence undetermined by the jury. This conclusion I think is unwarranted. There was testimony offered on the subject of contributory negligence, and it is conceded that the j ury was fully and properly instructed in that regard. It is not questioned by the majority that there was sufficient testimony to sustain the verdict, and if the special interrogatory had not been propounded, as I understand the opinion, the judgment would be affirmed. In the first place, the interrogatory is so mixed in its terms that the jury could not intelligently answer it. Of course the plaintiff could not have heard the noise of the machine by glancing in its direction, nor is a pedestrian required, in the exercise of his ordinary faculties, to glance up and down or across the street in anticipation of the approach of an automobile. The question, therefor, which was propounded assumed a duty which the law does not impose upon the pedestrian, and ought not to have been submitted.

I have no fault to find with the quotations in the opinion regarding the duty of pedestrians. They simply announce the doctrine that a pedestrian must exercise such care as, under the circumstances is reasonable. If a pedestrian hears the horn of an automobile, he ought to recognize the signal as one of danger and govern himself accordingly. Or, if he sees an automobile approaching in his direction, it is a notification of danger. It might even be his duty, if he were turning a sharp corner and suddenly precipitating himself upon the street in a place where the driver of an automobile could not reasonably see him, to look to see if there was anything that would endanger him. But in this case the respondent was maintaining a uniform direction, crossing the street in a direct line with the walk upon the side of the block he had traversed. Under such circumstances, if it is held to be the duty of the pedestrian to glance around for the purposes of discovering automobiles before he can recover, the cross-walks of the streets of cities will become death traps to the unwary travelers. In this case the automobile was traveling in the street parallel to the walk traveled by the pedestrian, and, while the respondent was pursuing his undeviating way, it turned abruptly to cross the walk he was upon, and ran him down. Under such circumstances the driver was guilty of gross negligence, and there was no room for the interrogatory proposed.

Another conclusive answer to the opinion is that it is the settled law of this jurisdiction that contributory negligence is an affirmative defense. The burden is, therefore, upon the defendant to prove it; and when it is shown by an answer to the interrogatory that the jury did not know whether contributory negligence was attributable to the plaintiff or not, the defendant has failed to sustain a defense on that issue. It is evident that the majority has seized upon the wrong horn of the dilemma.