Anselmo v. Morsing , 166 Wash. 111 ( 1931 )

ON PETITION FOR REHEARING. [March 15, 1932.] Appellant has filed herein a petition for a rehearing, reasserting his position that the doctrine of last clear chance was inapplicable to this case, and that the instruction upon that doctrine given by the trial court (discussed under subhead (3) of the Departmental opinion) constitutes reversible error.

[4] Appellant did not except to this instruction, which was almost literally copied from one approved in Fredericks v.Seattle, 159 Wn. 224, 292 P. 427, upon the second phase of the law of last clear chance, upon the ground that the doctrine of last clear chance was not applicable to the situation presented by the evidence, but excepted to the instruction only because the same constituted an incomplete statement of the doctrine of last clear chance, in that the same did not include any statement of the element of continuing negligence.

The exception being insufficient to present to this court for review the question of whether or not the trial court should have given any instruction at all on the doctrine of last clear chance, and the exception raising no question as to the correctness of the instruction so far as it went, the only question presented by the exception is whether or not the instruction constitutes reversible error because the same did not include the element of continuing negligence.

Appellant not having excepted to the trial court instructing the jury on the question of last clear chance, but excepting only upon the ground that the instruction given was incomplete, under the following authorities, Rush v. Spokane Falls N.R. Co.,23 Wn. 501, 63 P. 500; Lipsett v. Dettering, 94 Wn. 629,162 P. 1007; McCreedy v. Fournier, 113 Wn. 351, 194 P. 398; and Masterson v. Leonard, 116 Wn. 551, 200 P. 320, the burden rested upon him to submit a proposed instruction embodying his idea as to the manner and form in which the jury should be instructed on that phase of the case. Not having done this, there is no error available to appellant in connection with this matter.

With this explanation, the court adheres to the Departmental opinion, and appellant's petition for a rehearing is denied.