Filer v. Great Western Lumber Co.

Foster, J. Defendants below, Great Western Lumber Company and Elbert Young, appeal from a verdict and judgment for $6,167.81, in favor of respondent Owen B. Filer. Appellant’s logging truck and respondent’s car collided in October, 1953, as a result of which respondent Filer sued Great Western Lumber Company and Elbert Young because of the negligence of the truck driver. The accident occurred on a two-lane highway. Respondent was attempting to pass the logging truck when the truck driver turned left at an intersection. The vehicles collided. At the trial, appellant’s driver admitted having seen respondent’s car in his mirror well before starting to turn. The evidence conflicted as to whether the driver had signaled his intention for a left turn. It is undisputed that the jury was entitled to find that appellant’s driver negligently omitted such signal, and did so find. However, appellants alleged respondent’s contributory negligence in not sounding his car horn before passing, and that such was a proximate cause. The evidence is uncontradicted that respondent did fail to sound his horn before passing, on which ground appellants moved at appropriate junctures for a directed verdict, for judgment n.o.v., and for a new trial. To denial of these motions, appellants assign error. Error is also assigned to the giving of instruction No. 20, and to the refusal of a requested instruction. All raise the same question and do not require separate discussion. Because respondent violated ROW 46.60.040 by failing to sound his horn before passing, which is negligence per se, appellants argue that respondent was contributorily negligent as a matter of law. This does not follow because [274] such contributory negligence must also be a proximate cause, and the evidence upon this point is in conflict. The court, in instruction No. 18, told the jury that the violation of a statute was negligence but that such negligence would not bar recovery unless such violation proximately contributed to the accident. The instruction in full is as follows: “The violation, if you find there was such a violation, of a statute governing the operation of motor vehicles is negligence as a matter of law. “While the violation of a positive statute is negligence, such negligence will not bar recovery on the part of a plaintiff, nor will it render a defendant liable for damages, unless such violation proximately contributed to or proximately caused the injury.” There was evidence, and the jury was entitled to and did find, that the driver of the appellant’s truck saw the respondent following and that the respondent waved at him as he drew abreast of appellant’s truck in the act of passing. It is abundantly clear that the jury was entitled to find that the sounding of the respondent’s car horn would not have added anything to the knowledge of the appellant truck driver of the respondent’s intention to pass the truck. The jury was fully entitled to find that the failure to sound the horn, therefore, was not a proximate cause of the accident. In a number of decisions, presently noticed, this court has said just that. Recently, the supreme court of Oregon in this precise situation in Perdue v. Pacific Tel. & Tel. Co., 213 Ore. 596, 326 P. (2d) 1026, said: “It appears, therefore, that the trial court should have decided that ORS 483.310 (4) was violated. Such a violation is negligence per se. Although that section of our laws was disobeyed, it does not follow as a matter of law that the violation was the proximate cause of the plaintiff’s injury. We think that the issue upon that score was for the jury.” The court properly instructed the jury and the evidence presented a dispute of fact. Nowhere are the rights and [275] liabilities more clearly stated than by Judge Cardozo for the New York court of appeals in Martin v. Herzog, 228 N. Y. 164, 170, 126 N. E. 814 (1920). His words are: “We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury. A defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the disaster. A plaintiff who travels without them is not to forfeit the right to damages unless the absence of lights is at least a contributing cause of the disaster. To say that conduct is negligence is not to say that it is always contributory negligence. ‘Proof of negligence in the air, so to speak, will not do’ (Pollock Torts [10th ed.], p. 472). ...” The late Judge Simpson for this court in Webb v. Seattle, 22 Wn. (2d) 596, 157 P. (2d) 312, 158 A. L. R. 810, summarized our decisions as follows: “ . . . The determination of this question depends upon the necessity of the giving of a signal by the driver of the bus. The purpose of giving a warning by bell or horn is to focus the attention of people on the approach of a vehicle. In this case, the evidence shows that Harry Webb and all of the other young people saw the approach of the bus and were fully aware of its course of travel. That being true, it was not necessary to give a signal. Van Dyke v. Johnson, 82 Wash. 377, 144 Pac. 540; Blanchard v. Puget Sound T. L. & P. Co., 105 Wash. 226, 177 Pac. 822; Cole v. Washington Water Power Co., 119 Wash. 29, 204 Pac. 1060; Hoopman v. Seattle, 122 Wash. 379, 210 Pac. 783; McClelland v. Pacific Northwest Traction Co., 138 Wash. 527, 244 Pac. 710; Luther v. Pacific Fruit & Produce Co., 143 Wash. 308, 255 Pac. 365; Wooldridge v. Pacific Coast Coal Co., ante p. 314 [22 Wn. (2d) 314], 155 P. (2d) 1001.” The court’s opinion in Hess v. Catron, 51 Wn. (2d) 40, 315 P. (2d) 640, stated the rule of law which controls here. It said: “Assuming that respondent’s testimony established a violation of the statute above quoted, it was a question for the jury, under proper instructions from the court, to determine whether such violation proximately caused the collision. ...” [276] The court in White v. Peters, 52 Wn. (2d) 824, 329 P. (2d) 471, said: “. . . Plaintiff White’s noncompliance with the requirements of his restricted driver’s license may or may not have been a factor contributing to the accident. Whether his noncompliance is a proximate cause of the accident is a jury question in the circumstances of this case.” In Satterlee v. Orange Glenn School Dist., 29 Cal. (2d) 581, 177 P. (2d) 279, the law was very accurately summarized: “It is also necessary to show that the violation was a proximately contributing cause of the injury. (Burtt v. Bank of California, 211 Cal. 548 [296 P. 68]; Williams v. Southern Pac. Co., 173 Cal. 525 [160 P. 660]; Hitson v. Dwyer, 61 Cal. App. 2d 803 [143 P. 2d 952]; Sharick v. Galloway, 19 Cal. App. 2d 693 [66 P. 2d 185].)” The same view was expressed in Chapman v. Associated Transport, Inc., 218 S. C. 554, 63 S. E. (2d) 465, as follows: “The violation of an applicable statute is negligence per se, and whether or not such breach contributed as a proximate cause to plaintiff’s injury is ordinarily a question for the jury. Eickhoff v. Beard-Laney, Inc., 199 S. C. 500, 20 S. E. 2d 153, 141 A. L. R., 1010; Lawrence v. Southern Ry.-Carolina Division, 169 S. C. 1, 167 S. E. 839; Dickson v. Inter-Carolina Motor Bus Co., 161 S. C. 297, 159 S. E. 625. It is stated in 4 Blashfield, Cyclopedia of Automobile Law & Practice (Perm, ed.) 102, § 2599, as follows: “Failure to comply with a statute requiring the giving of signals by motor vehicles to warn other travelers of impending danger does not constitute actionable negligence, unless it is the cause of the injury of which complaint is made, nor will such failure prevent recovery by the motorist guilty of it if the injuries are not caused by it. “Of course, under certain circumstances the jury may find that the failure to give a signal contributes to an accident, but where a vehicle is seen, or, for any other reason, a signal would not prevent an accident, the failure to give the signal is not the proximate cause of the accident.” The jury was properly instructed. The evidence produced a dispute of fact upon which the jury’s verdict is [277] conclusive. Our constitution provides that trial by jury shall remain inviolate and that constitutional mandate is obligatory upon this court. We may not invade the province of the jury on a dispute of fact when the jury is properly instructed on the law. The law is settled beyond legitimate controversy that, while the violation of positive law is in itself negligence, such negligence on the part of a plaintiff does not bar his recovery unless the statutory violation is, likewise, a proximate cause of the accident. Atkins v. Churchill, 30 Wn. (2d) 859, 194 P. (2d) 364; Everest v. Riecken, 26 Wn. (2d) 542, 174 P. (2d) 762; Bleiler v. Wolff, 23 Wn. (2d) 368, 161 P. (2d) 145; and Perren v. Press, 196 Wash. 14, 81 P. (2d) 867, held just that. The judgment is affirmed. Finley, Ott, and Hunter, JJ., concur.