After carefully considering the record in this case I have reached the conclusion that the trial court did not err in refusing to give appellants' requested instructions Nos. 2 and 17, covering the provisions of subd. 16, sec. 1, c. 249, Sess. Laws 1921. That subdivision, so far as it relates to the speed limit at schoolhouses, was enacted for the benefit of school children, and when violated as against a child or children it is negligence per se. (Winsor v. Fonda, 126 Wash. 402,218 P. 219; Stoddard v. Smathers, 120 Wash. 53, 206 P. 933; Waltersv. City of Seattle, 97 Wash. 657, 167 P. 124.)
From the record it appears that Mrs. Quillin, after coming out of the schoolhouse and on to the sidewalk, as she stepped off the curb, looked up the street to the east and saw a car coming from about 7th Street, approximately 300 feet to the east. Although seeing the car, Mrs. Quillin started across the street and when she reached the middle of the street looked again to the right and saw the approaching car, which seemed not to be under the control of the driver and was coming fast and zigzagging. Mrs. Quillin hesitated and then ran to her car and put one foot on the running-board *Page 543 and her left hand on the door to open it, and as she did so she was struck by Mrs. Colquhoun's car and injured.
The evidence is clear that there was a pile of wood immediately to the right of the entrance of the schoolhouse, and that there were cars on both sides of the street. One witness who saw Mrs. Quillin come out of the schoolhouse testified that she suddenly emerged from behind the wood and walked rapidly toward her car on the opposite side of the street, and that she hesitated when she got in the middle of the street. Mrs. Colquhoun testified that she was watching the cars on both sides of the street, thinking that possibly one might back out while she was driving down the street, and that she did not see Mrs. Quillin until the latter was within three feet of the Colquhoun car. It appears that the street is only thirty-four feet wide.
Under these facts and circumstances the question for the determination of the jury was what was the proximate cause of the accident. In determining that question, if the jury found that Mrs. Colquhoun, in operating her car, drove it in such a manner or at such a rate of speed as to be the proximate cause of the injury, she would be liable, while, on the other hand, if the acts and conduct of Mrs. Quillin were such as to be the proximate cause of the injury there would be no liability, unless the jury further found, in applying the last clear chance doctrine, that the accident could have been avoided. In other words, it was purely a question of negligence, and for the jury. The jury found by its verdict that Mrs. Quillin was guilty of contributory negligence, and that under the doctrine of last clear chance, which presupposes contributory negligence, the accident could not have been avoided. The jury was instructed on the question of negligence, and while it may be true that some of the instructions are subject to criticism, on the whole and considered together, I am not convinced that the jury was misled by the instructions, or that in giving them the court committed prejudicial error. An instruction may be technically erroneous, but it does not follow that it is prejudicial. *Page 544
If a person crosses a street between intersections or regular crossings, some additional vigilance is required, and such person must exercise increased caution and diligence to avoid injury, although knowledge of a dangerous condition or obstruction in a street and the use of it notwithstanding such knowledge are not of themselves negligence. In other words, although a person is required to exercise only ordinary care and prudence, yet such care and prudence must be commensurate with the necessities of the case, and maintain a constant level with the dangers of the situation. (Falls Township v. Stewart,3 Kan. App. 403, 42 P. 926; Walters v. City of Seattle,supra.) But these are all questions of fact for the jury, and since it heard the testimony of all the witnesses, observed their demeanor, and had full knowledge of the location where the accident occurred, and was not misdirected by the instructions of the court to the prejudice of appellants, I know of no reason why the verdict should be set aside and the judgment of the court based thereon reversed.