As late as Rieger v. Kirkland, ante p. 326, 111 P.2d 241, this court, speaking through Steinert, J., answering the argument that appellants were not guilty of negligence and that respondent was guilty of contributory negligence as a matter of law, said:
"In passing upon those contentions, we must, of course, not only regard as true all competent evidence which is favorable to respondent, but must also give him the benefit of every favorable inference that can reasonably be drawn from such evidence."
That is merely a restatement of a long established and universally recognized rule that all competent evidence in the record which is favorable to the respondent must be regarded as true and that the respondent must be given the benefit of every favorable inference which may reasonably be drawn from such evidence; that, where the minds of reasonable men may differ, the question should be submitted to the jury; and that, if, when so considered, the court finds there is substantial evidence to sustain the verdict, the judgment must be affirmed.
I am constrained, despite previous futile efforts in support of a view which has not commended itself to this court, to again voice my objection to the majority's drastic departure from the foregoing cited and quoted rule, as such change in policy is destructive of the jury system, hence a change which we as Americans should be slow to sanction.
The constitution (Art. I, § 21, state constitution) guarantees that the "right of trial by jury shall remain inviolate," but the legislature may provide for waiving of the jury in civil cases where the consent of the parties interested is given thereto.
The word "inviolate," as used in the above-quoted constitutional provision, means freedom from substantial *Page 422 impairment by courts, as well as by legislatures. The word "inviolate," as used in the above-quoted section, does not prohibit modification of the details of administration which does not affect enjoyment of the right of trial by jury, a right sometimes figuratively designated as "the jewel of Anglo-Saxon jurisprudence."
Under the above-quoted section of our constitution, the courts cannot legitimately trench on the province of the jury upon questions of fact. It is the function of the jury, not the court, to settle disputed issues of fact. Courts should be on the alert to safeguard, instead of rendering nugatory, the constitutional right of trial by jury.
There is justification for a dissenting opinion only if it is right, but it is of no avail if it fails to challenge attention, provoke inquiry, and eventually lead to ascertainment of the truth. Whether the writer is correct in his conclusions with respect to which the majority and the undersigned differ, will be answered now and in the future by a most charitable profession. It is hoped that what is said herein may so interest the profession that ultimately we may again adopt and follow the rule which the minority believes is violated by the opinion of the majority.
The majority concedes that appellant was guilty of negligence. In the absence of evidence of primary negligence, there would be no point in the discussion of the question of contributory negligence. Well may the majority admit the sufficiency of the evidence to establish the fact that appellant was guilty of negligence, as there is substantial evidence appellant was guilty of gross negligence.
Appellant's street car was operated at an excessive rate of speed, and the operator did not have the car under reasonable control. The deceased was struck *Page 423 while on the crosswalk, after which impact the street car traveled a distance of two hundred and two feet. The motorman testified that he applied the brakes, threw the car into reverse, and did all that he could to stop the car, from which the jury was warranted in believing that the street car proceeded two hundred and two feet with the brakes set and while in reverse, which concludes the question whether the street car was operated at an excessive rate of speed and in wanton disregard of the rights of pedestrian and other traffic.
There is, also, competent evidence the motorman could have seen, had he looked, the deceased at a point thirty-five to seventy-five feet from the place of collision with the deceased, hence he may not say he did not see deceased in time to stop the car or warn the deceased in time for the latter to escape from the place of peril. It should be remembered that a street light made deceased plainly visible to any one who was looking for passengers. It was the duty of the operator of appellant's street car to watch for intending passengers and traffic.
The Hyneks saw the street car, when they were at the street corner at a pedestrian crossing, at which time the street car was seven hundred feet distant from them. The Hyneks were walking normally, crossing directly on the pedestrian crossing. They had the right to assume that the car was stopping in response to their signal. The jury was warranted in finding from the facts that the operator of appellant's street car saw the Hyneks, slowed down to stop in response to their signal, and then changed his mind and went forward without warning the Hyneks.
An apposite case is Hoyer v. Spokane United Railways,153 Wn. 450, 279 P. 742. The course of Sprague avenue in the city of Spokane is east and west, and thereon are the double tracks of the street railway *Page 424 of the defendant. Ivory street runs north and south, but does not extend north of Sprague avenue. About nine p.m., the plaintiff came on to Sprague avenue from the north, about thirty-four feet west of the west sidewalk line of Ivory street, with the intention of boarding an eastbound street car. He saw a street car approaching from the west two blocks away. Plaintiff walked east thirty-four feet to the west sidewalk line of Ivory street, turned south, and proceeded to cross the street to board the street car on the south side of the street. He testified that he did that at the time in the belief that he had ample time to cross over the south track before the street car would arrive at its stopping place, and he believed that the street car was slowing down and about to stop in response to his holding up his hand, as he was crossing Sprague avenue, as a signal for the car to stop. Other witnesses testified the car was running thirty to thirty-five miles an hour and that it did not slow down until just about, or immediately prior to, the impact. The car ran a distance of about three times its length before it could be stopped. The plaintiff was struck when he had crossed over the south rail. The trial court sustained a challenge at the close of the plaintiff's case on the ground of plaintiff's contributory negligence. We reversed the judgment of dismissal and remanded the cause with instructions to award the plaintiff a new trial. In the course of our opinion, we said:
"No contention is here made in behalf of respondent but that the operation of its street car, immediately preceding and at the time it struck appellant, was proved to be so negligently done that a jury might have found in favor of appellant on that question; more particularly as to the street car's excessive speed and the motorman's failure to observe appellant's crossing Sprague avenue and his signal for a stopping of the car at the usual stopping place at that intersection. . . . *Page 425
"It seems to us that the facts of the case, as the jury might have believed them, are such that the question of appellant's contributory negligence could not be decided as a matter of law against him. This case, like many others we have been heretofore called upon to decide, belongs, it seems to us, to that class wherein it becomes a question of fact for the jury to decide as to whether or not, under the circumstances, appellant was justified in assuming that he could safely cross the track without the car striking him. This is particularly true in view of the fact that this was a regular stopping place of the street cars eastward bound, upon proper signal being given therefor, and in any event was a place where the right of way of appellant was superior to the right of way of the street car, though we do not fail to recognize that such right of way is not absolute, but relative, as we have said in substance. If the car had not been running at an excessive speed, plainly appellant would have gotten across without being struck; and, if the car had stopped in response to appellant's signal, plainly he would have gotten across without being struck. This is not a case of appellant proceeding, wholly unwarranted, without taking any precautions. We think it cannot be said but that the exercise of his judgment under the circumstances was a question for the jury, and not for the court to decide. . . .
"The decision of this court which, to our minds, comes nearest to being out of harmony with the conclusion we here reach, is that of McClelland v. Pacific Northwest Tr. Co., 138 Wn. 527,244 P. 710. It appears in that case, however, that the interurban car was not supposed to stop at the place in question, and the injured plaintiff testified, `I did not think it was going to stop at Mercer street.' This was where she crossed in front of the interurban car, knowing it was coming, and was injured. We conclude that the trial court erred in deciding as a matter of law that appellant was guilty of contributory negligence."
The only distinction between the case cited and the case at bar in point of fact is that, in the former case, the plaintiff was crossing to the regular stopping place, probably due to the fact that he was familiar with that *Page 426 particular intersection and the street car system, while in the case at bar the deceased was crossing the south crosswalk rather than the northerly crosswalk, which, under the evidence adduced by the appellant, was the regular stopping place. This is not a determinative factor when you take into consideration the unfamiliarity of the deceased with the street car system and, particularly, the intersection in question, and the evidence that the stopping places in the vicinity varied; that is, some stops are made at the near side of the intersection and some are made at the far side. There were no street car stop signs at the intersection in question. It must also be borne in mind that the deceased had the right to assume that the street car stopped at the southerly crosswalk where the Hyneks were crossing and, also, that they were misled, as was the plaintiff in the Hoyer case, by the action of the operator of the car. The Hoyer case has not been overruled. See, also, Hohman v. Seattle, 179 Wn. 663,38 P.2d 242.
Throughout our consideration of the case at bar, we can not be too mindful of the fact that the question of contributory negligence of the deceased should not be considered solely with respect to the actions of the deceased, but must be considered, as counsel for respondent insist, in the light of the gross negligence of appellant. The fact can not be stressed too strongly that the deceased moved in front of the approaching car in reliance upon the action of the operator of that car in slowing down that vehicle in response to the signal of the deceased, and upon the assumption that the street car would stop. The following language from the opinion in Hines v. Chicago, M. St. P.R. Co., 105 Wn. 178, 177 P. 795, is apt:
"Counsel for respondent seek to have us shut our eyes to the question of its negligence, and proceed upon the theory that such negligence is not a subject for proper inquiry at this time, since they are relying upon *Page 427 the contributory negligence of appellant to defeat his recovery. This view of the case, we cannot assent to. This is one of those cases where the question of appellant's contributory negligence is intimately related to the question of respondent's negligence, since it was the negligent acts of respondent which largely induced appellant to act as he did. When respondent's servants failed to give such signals by sound or lights as would attract the attention of one about to pass over this country crossing, indicating that the locomotive was running in that direction, it clearly was guilty of negligence; and such negligence becomes little short of a controlling factor in determining whether or not appellant was guilty of contributory negligence in acting as he did. As was well said by Judge Fullerton in Hull v. Seattle,Renton Southern R. Co., 60 Wn. 162, 110 P. 804:
"`A victim of an accident is entitled to have his conduct judged by the circumstances surrounding him at the time of the accident — by the conditions as they appeared to one in his then situation — and if his conduct when so judged appears to be that of a reasonably prudent person, he cannot be said to be guilty of negligence.'
"This is not only the rule applicable generally to contributory negligence, but it has peculiar force and application to conditions which are the creations of a defendant's relying upon the contributory negligence of the injured person to escape responsibility, when such conditions would naturally influence the action of the person charged with contributory negligence. This is the principle upon which our decision in Richmond v.Tacoma R. Power Co., 67 Wn. 444, 122 P. 351, was largely rested, which dealt with a situation, we think, even less favorable to the injured person than that with which we are here dealing. We are also to remember that this is not a case where we are asked to decide negatively that there is not sufficient evidence of negligence on the part of respondent to warrant recovery; but we are asked to decide affirmatively that it has been conclusively proven that appellant was guilty of contributory negligence — a question as to which the burden of proof rested upon respondent. As pointed *Page 428 out in the Richmond case, greater caution is to be exercised in deciding, as a matter of law, that a fact which the law requires to be affirmatively proven has been conclusively proven, than in merely deciding, as a matter of law, negatively, that a fact has not been proven. It seems to us that there is greater danger of invading the province of the jury in the former than in the latter case. That contributory negligence is an affirmative defense, casting the burden of proof upon the defendant to establish it, is the well settled law of this state. Benson v.English Lumber Co., 71 Wn. 616, 622, 129 P. 403."
When Mrs. Hynek used the plural, "they" did certain things and saw certain things, in testifying as to what she and her husband did and saw, such testimony must be viewed in the light of the facts. She could not correctly testify what her husband saw. She could, it is true, testify what she saw him do, but there is no testimony that he told her what he saw. He was killed immediately, so no one could testify what he saw. Mrs. Hynek was eighteen inches behind her husband on his right hand side so it was impossible for her to know what her husband saw. Her inadvertent use of the word "we" instead of the word "I" can not be accepted as evidence of what Mr. Hynek saw, nor is the fact that Mrs. Hynek escaped injury determinative of the question whether deceased was guilty of contributory negligence. What she did or what she did not do, is not the standard of proper care. Only eighteen inches separated her from the same fate which befell her husband.
In Poland v. Seattle, 200 Wn. 208, 93 P.2d 379, we again stated, but departed therefrom, the rule respecting the question of contributory negligence, which rule is applicable to the facts in the case at bar. We said:
"In approaching the question of respondent's contributory negligence, we have in mind that:
"`The questions of negligence and contributory *Page 429 negligence, where the evidence is conflicting, is always a question for the jury, has been held in so many cases that it is unnecessary to cite them.' Crowe v. O'Rourke, 146 Wn. 74,262 P. 136.
"`It has long been the rule of this court that, before a court will be justified in taking from the jury the question of contributory negligence, the acts done must be so palpably negligent that there can be no two opinions concerning them.'Walters v. Seattle, 97 Wn. 657, 167 P. 124."
In Beck v. Dye, 200 Wn. 1, 92 P.2d 1113, 127 A.L.R. 1022, we said, respecting the rule which we have in the case at bar abandoned,
"The rule is that where, on a controverted question of fact, there is evidence, or there are justifiable inferences from evidence, upon which reasonable minds might reach different conclusions, the question becomes one of fact for the jury, and not for the court, to decide. Ahrens v. Anderson, 186 Wn. 182,57 P.2d 410; Boyd v. Cole, 189 Wn. 81,63 P.2d 931; Corbaley v. Pierce County, 192 Wn. 688, 74 P.2d 993;Gibson v. Spokane United Railways, 197 Wn. 58,84 P.2d 349; Shephard v. Smith, 198 Wn. 395, 88 P.2d 601."
The challenge to the instruction on the doctrine of the last clear chance is without merit. If the instruction of which appellant complains is read in light of the facts, and if the following opinions of this court are of any weight, it will be at once clear that there was no error in submitting to the jury the "should have seen" phase of the last clear chance doctrine.Mosso v. Stanton Co., 75 Wn. 220, 134 P. 941, L.R.A. 1916A, 943; Leftridge v. Seattle, 130 Wn. 541, 228 P. 302;Johnson v. Johnson, 85 Wn. 18, 147 P. 649; Chase v.Seattle Taxicab Transfer Co., 78 Wn. 537, 139 P. 499;Kuhnhausen v. Woodbeck, 2 Wn.2d 338, 97 P.2d 1099;Morris v. Seattle, R. S.R. Co., 66 Wn. 691, 120 P. 534;Lung v. Washington Water Power *Page 430 Co., 144 Wn. 676, 258 P. 832; Locke v. Puget Sound Int. R. P. Co., 100 Wn. 432, 171 P. 242; Smith v. Gamp,178 Wn. 451, 35 P.2d 40. Even if the first phase of the doctrine, that "if he were seen by the motorman" were submitted, such instruction would not be erroneous. See Chapin v. Stickel,173 Wn. 174, 22 P.2d 290.
In addition, an examination of the record will disclose that the exceptions to the instructions are not sufficient to raise the specific point urged on this appeal. Also, it will be found, if they are analyzed, that the authorities upon which appellant relies are distinguishable on the facts from the case at bar, or they are in conflict with prior and subsequent opinions of this court, therefore out of harmony with Art. I, § 21, state constitution, and contrary to the rule applicable to the facts in this case.
To cite, and quote extensively therefrom, the numerous opinions of this court in support of the position of the minority, would serve no useful purpose. The judgment should be affirmed.
MAIN, DRIVER, and BLAKE, JJ., concur with MILLARD, J. *Page 431