Shipley v. Nelson

Mackintosh, J. The complaint in this action alleged that “the defendant, N. P. Nelson, also traveling-south, driving an automobile at a high and reckless [40] rate of speed and going up-hill, in broad daylight, so carelessly, negligently and recklessly managed and operated said automobile that the same was driven over and upon the plaintiff, Irwin 8. Shipley,” thereby injuring Shipley. The trial of the case resulted in a verdict in favor of the plaintiff, from which the defendant has appealed. A reading of the testimony in the case discloses sufficient evidence to justify the trial court’s refusal to grant defendant’s motion to dismiss the action at the close of the plaintiffs’ case, and also its denial of the defendant’s motion for judgment notwithstanding the verdict. Among other instructions which the court gave the jury was the following: “It is proper, I think, in this connection to instruct you upon another provision of the law, which requires anyone using a motor vehicle upon the public roads or highways to be equipped with a,proper bell, horn or other signal device in order to warn a person in ease of danger. The complaint in this case does not specify that as one of the grounds of negligence, but it is a proper matter to be taken into consideration in determining whether or not the defendant in this case used the proper care in approaching the plaintiff and his bicycle when he was approaching him on the highway ; so that, if you find from a preponderance of the evidence that under the circumstances of this particular case it would have been proper or reasonable for the defendant to give warning of his approach in order to avoid the injury or danger to the plaintiff, then it would be his duty to give such warning as to notify the plaintiff of his approach, and if he failed to do that it would be a lack of reasonable care in the operation of his machine. ’ ’ The giving of this instruction is assigned as error for the reason, as argued, that the allegation of negligence pleaded by the plaintiff was specific and referred [41] only to “high, and reckless rate of speed.” While it is true that, as we have held in Albin v. Seattle Elec. Co., 40 Wash. 51, 82 Pac. 145; Ennis v. Banks, 88 Wash. 237, 152 Pac. 1037, and Eddy v. Spelger & Hurlbut, 117 Wash. 632, 201 Pac. 898, where there is a general allegation of negligence in a complaint which is followed by a specification of the acts of negligence complained of, or where negligence is specifically set ont without any general allegation, the evidence must be confined to the specific issue so presented in the pleadings, in the absence of any amendment; yet, as we read the allegation of negligence here, we cannot agree with the plaintiffs ’ contention, for the complaint seems to allege, in addition to the high and reckless rate of speed, the careless, negligent and reckless management and operation of the automobile, which would justify the court in submitting to the jury the question of whether the defendant was negligent under the general provisions of the statute providing that a person shall drive in a careful and prudent manner, and not at a greater rate of speed than is reasonable and proper, and with due regard to the traffic and use of the road by others. The instruction complained of, however, is improper for the reason that there was no testimony in the case to the point that the automobile was not properly equipped with sounding apparatus, or that this had not been used and that no warning had been given. Several witnesses for the defendant testified that proper warning signals were given, and the only testimony on this point by the plaintiff was the following, from his cross-examination: “Q. And as I understood your testimony on the direct examination, you say that you heard a noise behind you? A. I heard something just before I was struck. Q. Now what was that? A. That I couldn’t [42] tell. Q. Was it a horn honking? A. I couldn’t swear to that. I heard something and seems like it came just like that (indicating) and I was hit.” This evidence was not sufficient to submit this phase of negligence to the jury. A motion was made for new trial on the ground of the misconduct of the jury. It is unnecessary to discuss this assignment of error to any extent, for although the new trial should have been granted on account of this misconduct, it is a matter which will not arise on a retrial of the case. The erroneous instruction and the misconduct of the jury entitle the appellant to a new trial. Judgment reversed and cause remanded. Parker, C. J., Main, Holcomb, and Hovey, JJ., concur.