Price v. Gabel , 162 Wash. 275 ( 1931 )

The majority opinion stresses the rule that "it is negligence in itself to violate a positive rule of the statute," citing Keller v.Breneman, 153 Wash. 208, 279 P. 588, and our prior decisions. That rule of negligence is of aid to the defendants here only as showing that the plaintiff was negligent in stationing himself in the street as he did. That does not demonstrate that such negligence of the plaintiff constituted a contributing, proximate cause of his damage. I think negligence in violation of a statutory or ordinance rule of law, civil or criminal, is no different, as affecting civil rights and liabilities, than negligence in the violation of the common law rule of due care. Justice Prentice, speaking for the supreme court of Connecticut in Farrington v. Cheponis, 84 Conn. 1, 78 A. 652, made this observation:

"The fact that there was a city ordinance forbidding and punishing coasting in the highway in question is not one which would of itself bar the plaintiff's recovery. It must also appear that his violation of it was a proximate cause of the injuries he sustained. Broschart v. Tuttle, 59 Conn. 1, 20, 21 A. 925, 11 L.R.A. 33; Case v. Clark, 83 Conn. 183, 192, 76 A. 518;Elliott v. New York, N.H. H.R. Co., 83 Conn. 320,76 A. 298. In determining this question the same considerations control as in the case of negligence on the part of the injured party in failing to exercise due care, and the doctrine of supervening negligence is equally applicable. The failure to conform one's conduct to a standard of duty prescribed by legislative authority, or to conform it to the common-law requirement to exercise reasonable care under the circumstances constitutes negligence, and it makes no essential difference in law whether it arises from the one source or the other. Sharkey v. Skilton,83 Conn. 503, 77 A. 950."

So, let us not be led astray by the mere fact that the plaintiff's act was negligent by virtue of its being in violation of the city ordinance.

In Redford v. Spokane Street R. Co., 15 Wash. 419,46 P. 650, this court dealt with a case closely parallel to this in principle. Judge Gordon, speaking for the court, said:

"It appears from the evidence that plaintiff had driven across appellant's track, and after crossing, stopped to converse with a friend, and that while so engaged the collision occurred, and the claim of appellant is that if the respondent stopped his vehicle in such close proximity to appellant's track as not to enable its car to pass without colliding with the vehicle, he was guilty of contributory negligence and cannot recover. We agree with counsel for respondent that plaintiff's nearness to the track was a `condition' of the injury and not the cause of it, and we think that the jury were fully and fairly instructed that plaintiff could not recover unless the defendant's negligence was the proximate cause. `When the defendant's negligence is the proximate cause of the injury, while that of the plaintiff is only a remote cause or a mere condition of it, the action will lie.' Beach, Contributory Negligence (2d ed.), § 54; Gothard v.Alabama, etc., R.R. Co., 67 Ala. 114; Lay v. Richmond, etc.,R.R. Co., 106 N.C. 404 (11 S.E. 412); Newcomb v. BostonProtective Department, 146 Mass. 596 (16 N.E. 555, 4 Am. St. Rep. 354); Norris v. Litchfield, 35 N.H. 271 (69 Am. Dec. 546);Davis v. Mann, 10 Mees. W. 546."

This view of the law was adhered to in Benson v. EnglishLumber Co., 71 Wash. 616, 129 P. 403, Rhimer v. Davis,126 Wash. 470, 218 P. 193, and Sigol v. Kaplan, 147 Wash. 269,266 P. 154. The following of our decisions recognize this to be the law, though, upon the facts, the plaintiffs therein were held guilty of contributory negligence, as a matter of law: Twedt v.Seattle Taxicab Co., 121 Wash. 562, 210 P. 20; Benson v.Anderson, 129 Wash. 19, 223 P. 1063; Millspaugh v. AlertTransfer Storage Co., 145 Wash. 111, 259 P. 22; Keller v.Breneman, 153 Wash. 208, 279 P. 588.

It seems to us that this case calls for carefully taking note of the distinction between negligence which, in some substantial manner, proximately contributes to damage, and negligence constituting "a remote cause or a mere condition" attending the occurrence of damage. The following observations of Justice Knowlton, speaking for the supreme judicial court of Massachusetts in Newcomb v. Boston Protective Department,146 Mass. 596, 16 N.E. 555, are enlightening on this subject:

"The court rightly refused the instruction requested, that the plaintiff could not recover if, at the time of the accident, he was violating the ordinance, and so doing an unlawful act. This request ignored the distinction between illegality which is a cause, and illegality which is a condition, of a transaction relied on by a plaintiff, or between that which is an essential element of his case when all the facts appear, and that which is no part of it, but only an attendant circumstance. The position of a vehicle which has been struck by another may or may not have been one of the causes of the striking. Of course, it could not have been struck if it had not been in the place where the blow came. But this is a statement of an essential condition, and not of a cause of the impact. The distinction is between that which directly and proximately produces or helps to produce a result as an efficient cause, and that which is a necessary condition or attendant circumstance of it. If the position of the plaintiff's vehicle was such as, in connection with ordinary and usual concurring causes, would naturally produce such an accident, that indicates that it contributed to it. But, even in that case, external causes may have been so exclusive in their operation, and so free from any relation to the position of the vehicle, as to have left that a mere condition, without agency in producing the result; that is, a contributing cause of an accident, is usually a question for a jury, to be determined by the facts of the particular case; and such it has been held to be in many cases like the one before us. Damon v. Scituate, 119 Mass. 66; Hall v. Ripley, Id. 135;Welch v. Wesson, 6 Gray 505; Spofford v. Harlow, 3 Allen 176;White v. Lang, 128 Mass. 598; Baker v. Portland, 58 Me. 199;Norris v. Litchfield, 35 N.H. 271; Sutton v. Wauwatosa,29 Wis. 21."

If the servant of the defendants had exercised, while backing the automobile out of the garage driveway, "unceasing vigilance .. . so as not to injure those behind," as commanded by the ordinance, he would necessarily have seen the plaintiff standing approximately in the middle of the street in the direct path of the backing automobile approaching the plaintiff from his rear. In 1 Thompson's Commentaries on the Law of Negligence, § 1325, that learned author says:

". . . the plaintiff, or personal representative of the deceased, will not be precluded from recovering damages owing to the fact that the plaintiff or the deceased was guilty of some negligence in exposing himself in the public street to the injury which the defendant visited upon him, if, after seeing his exposed position, or if by the exercise of reasonable care the defendant might have seen it so as to avoid the injury by the subsequent exercise of reasonable care."

Considering the measure of care with which the servant of the defendants was charged by the terms of the ordinance; the plaintiff having become practically stationary, with his back to the automobile being backed by the defendants' servant; the absence of warning from the backing automobile; and the excessive speed of the backing automobile, it seems to me that it cannot be decided, as a matter of law, that the plaintiff was guilty of negligence which contributed in a substantial measure to his damage. The plaintiff's negligently placing himself in the street was, I think, but "a remote cause or a mere condition" attending his damage, and the real proximate cause of his injury was the gross negligence of the defendants, if the allegations of the complaint be true.

The judgment should be reversed and the cause remanded to the superior court with directions to overrule the demurrer.

BEELER, J., concurs with PARKER, J.