Ward v. Ticknor

303 P.2d 998, 49 Wash. 2d 493, 1956 Wash. LEXIS 302

• Court: Washington Supreme Court
• Decided: November 23, 1956
• Docket: 33461
• Status: Published

Opinions

Finley, J.

This is an action for personal injury and property damages, allegedly sustained as a result of a highway collision between plaintiff’s passenger car and defendants’ truck. In view of the questions involved on this appeal and the disposition which we make of them, it is unnecessary for us to state the facts as to how the accident occurred. After a trial to a jury, a verdict was returned in favor of the defendants. However, the trial court granted plaintiff’s motion for a new trial. This was on the ground that the trial court’s instruction No. 6 to the jury was erroneous and prejudicial. The defendants have appealed.

The trial court’s instruction No. 6 states:

“ ‘Contributory negligence’ is negligence on the part of the person injured which materially contributes toward causing the injury and damages complained of. It may also consist in doing some act which a reasonably prudent person would not have done under the same circumstances, or in failing to do something which a reasonably prudent person would have done under the same circumstances.

“The burden of proving contributory negligence rests on the party alleging it, but such proof may be had from any of the evidence in the case introduced by either party.

“If either party is guilty of contributory negligence, such party cannot recover from the other, even though the other is guilty of negligence.” (Italics ours.)

The trial court was of the view that the first sentence of the instruction (which we have emphasized by italics) did not specifically mention proximate cause and did not constitute an adequate instruction on the element of proximate cause in relation to the matter of contributory negligence. In addition, respondent contends that the last sentence of instruction No. 6 (also emphasized above), referring to contributory negligence on the part of either the plaintiff or the defendant, was erroneous, and that it constituted prejudicial error.

Although the first sentence of instruction No. 6 does not specifically mention proximate cause, the language clearly refers to the element of proximate cause in relation to the defense of contributory negligence. Furthermore, proximate cause is specifically mentioned, clearly explained, and properly emphasized in instructions Nos. 4A, 5, and 20.

The language of the last sentence of instruction No. 6 is inept and erroneous. It might have been appropriate if there had been a cross-complaint in the instant case. While the particular language was undesirable, and we certainly do not recommend its use in a case such as the one at bar, nevertheless, under the circumstances involved herein, we do not think its use amounted to prejudicial error. Other instructions given by the trial court, mentioned hereinbefore, clearly and adequately instructed the jury on contributory negligence. We do not agree with the trial court or with respondent that the giving of instruction No. 6 amounted to prejudicial error and required the granting of a new trial. In Qualls v. Golden Arrow Farms, 47 Wn. (2d) 599, 288 P. (2d) 1090, we said:

“A questioned portion of an instruction should not be considered as an isolated sentence or clause, but should be considered together with the instructions in their entirety.”

Respondent urges that he is entitled to a new trial on the ground of surprise, urged in connection with the motion for a new trial but apparently rejected by the trial court in granting the new trial in the instant case, and cites Snyder v. General Electric Co., 47 Wn. (2d) 60, 287 P. (2d) 108. Implementing the foregoing argument, respondent urges on appeal that appellants’ testimony at the trial differed significantly from his testimony taken on deposition prior thereto, and that this constituted surprise during the trial, prejudicial to and entitling respondent to the new trial as granted by the trial court.

At the trial, respondent made no claim of surprise. No objection was made to appellants’ testimony on the ground of any surprise involved. There was no request for a continuance. Respondent has waived the right to claim surprise and that his cause was prejudiced thereby. Sather v. Lindahl, 43 Wn. (2d) 463, 261 P. (2d) 682; 39 Am. Jur. 158, § 151.

For the reasons indicated hereinbefore, we think the trial court erred in granting the new trial. The order granting the new trial should be reversed and the action dismissed. It is so ordered.

Mallery, Schwellenbach, Ott, and Foster, JJ., concur.