and the appellant thereupon made a motion for judgment notwithstanding the verdict, and also made a motion for a new trial, both of which were denied, and exceptions taken. A judgment was entered on the verdict, from which this appeal is prosecuted. It is not difficult to state a general rule of what is or is not contributory negligence, but frequently it is extremely difficult to apply a general rule to the specific facts, and in doing so it is not strange that some confusion appears to have arisen among the decisions of this court. and, while so proceeding across the drive- | nied and an exception taken. The jury reway, a man in an automobile going toward turned a verdict in favor of the respondent, the city on the south side of the street asked him to ride. The respondent stopped, declined the invitation, and again looked to the left, but saw no car then in sight. He then continued to walk toward the curb next to the north car track until somewhat past the center of the paved driveway, and then turned and walked along the driveway towards D street at a distance of 2 or 3 feet from the 4-inch curb, but approaching nearer to the curb as he neared the intersection of D street, for the purpose of permitting west-bound traffic to pass him from behind. Respondent pursued this course until he had passed beyond the end of the curb and into the paved crossing at the intersection of D street. Then, without looking for the approach of the car, he turned and took a step or two to the left for the purpose of crossing to the south side of the south track, there to take the in-bound Garden Springs car, and, according to his testimony was about to the north rail of the north car track when he was struck by the appellant's interurban train. It is alleged that the interurban train was running at a speed in excess of 20 miles an hour, and in violation of a city ordinance which is pleaded. The evidence is conflicting as to whether or not the train was running in excess of 20 miles an hour; and the evidence is also conflicting as to whether or not any warning was given by the motorman of the interurban train by sounding a bell or whistle. Among the earlier leading cases, the one most frequently cited is Roberts v. Spokane Street Ry. Co., 23 Wash. 335, 63 Pac. 509, 54 L. R. A. 184, in which this court said: "It is not negligence per se if it is not shown that one looked and listened in crossing a street railway. The degree of care required in crossing a highway and steam railway, in looking up and down the track, is not necessarily the test of care required in crossing the track of a street railway on a public street. Failure to look and listen before crossing the tracks of an electric railway in a public street, where the cars have not the exclusive right of way, is not negligence as a matter of law (citing cases from other states)." In Traver v. Spokane Street Railway Co., 25 Wash. 225, 65 Pac. 284, the court said: "The obligations of the operator of the car and his [respondent's] obligations were mutual. Each was obligated to look out for the other, and govern his movements accordingly." In Burian v. Seattle Electric Co., 26 Wash. 606, 67 Pac. 214, in which the facts were quite similar to those in the case at bar, the court said: It "Conceding that the record as it stands shows that no gong was rung, still respondent urges that appellant was so palpably guilty of gross contributory negligence that, as a matter of law, it should be held he cannot recover. is true, it does not appear that he looked or listened for the approach of a car, and in turning to cross the respondent's track he did not It has been turn in the direction from which he knew a car upon that track must come. held by this court that failure to look or listen at a street railway crossing does not constitute negligence per se. Roberts v. Spokane Street Ry. Co., and Traver v. Spokane Street Ry. Co., supra. At the time and place of the accident there was nothing to obstruct the view in any direction of either the respondent or the motorman. The motorman testifies that he saw the respondent at a distance of at least 600 feet; that the respondent was walking parallel with the track outside the danger zone; that the bell was rung for the crossing as usual at a distance of about 150 feet from the place of the accident; was rung again at a distance of about 20 feet; and that as the car came within about 12 feet of the respondent he turned toward the track, when the motorman again rang the bell, threw on the emergency brakes and shouted to the respondent, but the means then using that a railroad company has a proprietored were insufficient to avoid the accident. A distinction is made in those cases between the rule which applies to a street railway crossing and that which applies to the crossing of an ordinary railroad, the reason be ship in its right of way, and that a greater deThe appellant admits on oral argument gree of care is required at a crossing of its tracks than is required at the crossing of a that upon the question of excessive speed street railway track, the owner of which has and upon the question of whether or not the no proprietorship in the street, and has only a bell was sounded there was sufficient evi- right upon the street in common with other travelers thereon. The above distinction is supdence to go to the jury, but claims that it ported by the weight of authority. Following affirmatively appears that the respondent the above-named cases, it must be held here that was guilty of contributory negligence per se. the mere failure of appellant to look or listen was not negligence as a matter of law, but it is At the close of the respondent's case the apa question to be submitted to the jury whether, pellant challenged the sufficiency of the evi- when considered in connection with all other dence, and moved for judgment, which mo- surroundings in this case, it constituted neglition was denied; and at the close of the gence in fact. The jury might have found that it was appellant's duty, under his peculiar surentire case the appellant renewed its chal-roundings, which were well known to him, to lenge and motion. These motions were de turn toward the direction from which the car came and look, or that he at least should have listened. Again, they might have found that circumstances and surroundings were such as did not charge him with that duty. Under the record they might also have found that the failure to ring the gong was negligence, and that, if the gong had sounded the alarm, appellant might have heard it in time to have protected himself. These are questions which, we think, must be submitted to the jury. Under our system of jurisprudence the jury is constituted the functionary which must pass upon these questions of fact. It is not a question of what may be our individual opinions as to the facts shown by the record. The law casts that duty upon the jury as a distinct and auxiliary branch of the court, and unless the evidence shows negligence on the part of appellant as a matter of law, it is his right to have the facts submitted to a jury. This court has held that generally the question of contributory negligence is for the jury to determine from all the facts and circumstances of the particular case, and that it is only in rare cases that the court is justified in withdrawing it from the jury; that there may be cases where the circumstances are such that the standard of duty is fixed and the measure of duty defined by law, and is the same under all circumstances; and again, that the facts may be undisputed, and may be such as prevent more than one reasonable inference being drawn from them. If, however, different results might be honestly reached by different minds, then negligence is not a question of law, but is one of fact for the jury, and before the 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 oninions concerning them. McQuillan v. Seattle, 10 Wash. 464 (38 Pac. 1119, 45 Am. St. Rep. 799); Steel v. Northern Pacific Ry. Co., 21 Wash. 287 (57 Pac. 820); Traver v. Spokane Street Ry. Co., supra. The above principle we believe is sustained by the weight of authority. It has, in any event, become the settled doctrine of this court." And the cases of Chisholm v. Seattle Electric Co., 27 Wash. 237, 67 Pac. 601, and Niemyer v. Washington Water Power Co., 45 Wash. 171, 88 Pac. 103, are in harmony with the decisions just referred to, and recognize the rule of reciprocal duty. What appears to be a divergence from the rule so far followed occurs in Helliesen v. Seattle Electric Co., 56 Wash. 278, 105 Pac. 458, where, after discussing the previous cases, the court said: "Did the pedestrian, under all the circumstances, use such a degree of care, caution and prudence as an ordinary, prudent and careful pedestrian would use under like circumstances?" This is the rule which the court has attempted to follow in some of the later cases, but in doing so it has nowhere repudiated the doctrine of reciprocal duties. See Fluhart v. Seattle Elec. Co., 65 Wash. 291, 118 Pac. 51; Slipper v. Seattle Elec. Co., 71 Wash. 279, 128 Pac. 233; Stueding v. Seattle Elec. Co., 71 Wash. 477, 128 Pac. 1058; Bardshar v. Seattle Elec. Co., 72 Wash. 201, 130 Pac. 101; Beeman v. Puget Sound T., L. & P. Co., 79 Wash. 139, 139 Pac. 1087; Arpagaus v. Washington Water Power Co., 86 Wash. 83, 149 Pac. 346: Jones v. Wiese, 88 Wash. 356, 153 Pac. 330; McEvilla v. Puget Sound T., L. & P. Co., 95 Wash. 657, 164 Pac. 193. In a number of these cases, referring to the particular facts in the case then under consideration, the court has said that the pedestrian must use his senses, which seems to limit and narrow the look and listen rule, for surely if one uses neither the sense of sight nor hearing, it is not reasonable to suppose that the use of his other senses will protect him from colliding with a moving street car. In these cases calling for the facts which created in each case an excepuse of the senses, the court either found tion to the earlier rule, or else encroached upon that rule, perhaps unconsciously, as the earlier cases have been cited and referred to from time to time, and no departure appears to have been intended. In the Beeman Case, supra, Judge Chadwick, speaking for the court said: "Whether a pedestrian should have known of the approach of a street car would no doubt be, in almost any conceivable case, a question for the jury; but when admitting that he knew it, there is a duty-not a duty owing to another, but a duty owing to sell-to keep in mind the fact that a car is approaching." which the jury may have found that the moThere was evidence in this case from torman for a distance of 1,500 feet or more could and did see the respondent, and must have known that he was walking with his back toward the approaching car, in close proximity to the tracks, and likely any moment to step into danger. The jury may have found from the evidence that the respondent was wholly unconscious of the approach of the car until the instant that it struck him; indeed that seems admitted. And there was evidence also from which the ceeding at an excessive rate of speed, and jury may have found that the car was prothat no warning was given. It is argued here, and may have been argued to the jury, that when respondent looked for the approach of a car when he was at a point 140 or 150 feet from the place of the accident, he could see the track for such a distance that it was prudent to believe he could reach and cross the tracks at D street before any car traveling at a lawful rate of speed could reach him; and that at any rate an approaching car would give abundant warning. Can we say that reasonable minds cannot differ as to whether or not the respondent should have known of the approach of the car, or again looked before entering the danger zone? In view of the reciprocal duties of the parties, we think it is a question for the jury even under the restricted rule (if there be such) to say whether or not respondent, under all the circumstances, acted as an ordinarily prudent person would act under like circumstances. The arguments made to us by both sides seem to be proper arguments to be made to the jury upon this question, and we think the trial court properly submitted it to the jury under the authority of the following: Bemiss v. Puget S. T., L. & P. Co., 89 Wash. 239, 154 Pac. 171; O'Brien v. Washington Water Power Co., 71 Wash. 688, 129 Pac. 391; Peterson v. Seattle Elec. Co., 71 Wash. 349, 128 Pac. 650; Richmond v. I stepped immediately in front of the moving Tacoma R. & P. Co., 67 Wash. 444, 122 Pac. car. 351; Morris v. Seattle, Renton, etc., R. Co., 66 Wash. 691, 120 Pac. 534; Mallett v. Seattle Elec. Co., 66 Wash. 251, 119 Pac. 743. We find no error in the instructions given to the jury. The judgment will be affirmed. MAIN, C. J., and FULLERTON, PARKER, MITCHELL, and HOLCOMB, JJ., concur. CHADWICK, J., concurs in the result. MOUNT, J. (dissenting). I cannot agree to the conclusion reached by the majority. The facts are to the effect that the respondent was walking along a paved boulevard parallel with the street railway tracks. The portion of the street containing the double track railway was the ordinary traveled street, with ties and rails. There was a curb 4 inches high separating the paved roadway from the car tracks. The respondent was walking leisurely along the paved roadway a couple of feet distant from the curb and parallel with the railway tracks. He was possessed of all his senses. His hearing and eyesight were good. There was nothing upon the street to distract his attention. While the place where he was injured was within the city limits, it was practically in the country. There was no traffic near. While he was thus walking, he came to D street, which was a paved crossing over the railway tracks. When he came to this crossing he started across the tracks. As he turned to his left and was about to step upon the tracks, the corner of the street car struck him upon the left shoulder and injurel him. I think the majority of the court will agree that if the respondent had been traveling at right angles to the boulevard for the distance of 140 feet and came to the street car track and attempted to step upon the track immediately in front of the street car, he would have been guilty of such negligence as to preclude a recovery, because coming for that distance at right angles to the street car track he of necessity must have seen the street car approaching, even at an excessive rate of speed, and if he had walked upon the track in front of the car, he would have been guilty of the grossest negligence; but, because he was walking parallel with the track, had looked down the track when he first came upon the street and saw no car coming at a distance of 1,500 feet, and because he walked parallel with the street car track, up to D street crossing, a distance of 140 feet and then turned to his left to cross the track, and was struck by the car, the majority say that this made a question for the jury. If the respondent had been an instant later he would have walked into the side of the street car as it passed him. If he had been an instant earlier he would have It seems that a man with all his senses, walking a distance of 2 or 3 feet from a street car track, and parallel with it, when a car is approaching so closely behind that the instant he attempts to step upon the track, and does not see it or hear it, is clearly guilty of negligence. It is conceded in this case that the respondent attempted to step upon the railway track immediately as the approaching car came to him. The car was certainly making some noise. The respondent was walking leisurely along beside the track and there was nothing to distract his attention. No other car was within sight, and no other conveyance was upon the street, and he must, therefore, have heard the car coming behind him. He must also have made a slight turn to the left in order to change his course so as to cross the track. A mere glance would have shown him that the car was upon him. Under these circumstances the respondent, as a matter of law, was guilty of negligence which was the primary cause of his injury, and therefore should not be permitted to recover. I therefore dissent. MACKINTOSH, J., joins in this dissent. In re GILL et al. (No. 23.) (Supreme Court of Washington. Nov. 19, 1918.) ATTORNEY AND CLIENT 38-GROUNDS FOR DISBARMENT-ADVERTISING. Where attorneys contracted with mercantile association for stipulated fee for which they missions upon business brought by the memwould defend all members, and for fixed combers, and the association advertised for memberships, stating that advice was furnished free of charge and that its members were protected by the lawyers, the lawyers were guilty of professional misconduct, though not sufficient to warrant their disbarment. En Banc. On Report from State Board of Law Examiners. Disbarment proceedings against Hiram C. Gill, Heber B. Hoyt, and Hermon S. Frye. Heard in the Supreme Court on report from the Board of Law Examiners and the findings made by it. Accused reprimanded. Ogden & Clarke, Walter Schaffner, Arthur E. Griffin, Edw. H. Wright, and Dallas V. Halverstadt, all of Seattle, for accused. W. V. Tanner, of Olympia, and Thos. Murphine, of Seattle, opposed. PARKER, J. This cause is a consolidation of three separate proceedings, which were by stipulation consolidated and heard together before the State Board of Law Examiners, and is now in this court for final disposition upon the report of the evidence For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes produced before that board and the findings made by it. The findings are against each of the accused. The proceedings were had before the board in pursuance of chapter 115, Laws of 1917. Our recent decision in Re Bruen, 172 Pac. 1152, interpreting that law in the light of the Constitution and the inherent power of this court relating to the disbarment and disciplining of attorneys as officers of the courts, makes it our duty to dispose of the cause upon the evidence produced before the board and reported to us, and also upon the findings of the board, except in so far as we may conclude that the latter are not supported by the evidence. The accused are each duly admitted to practice law in the courts of this state and have been engaged in the practice of law as copartners in Seattle for some 18 years past. It is alleged that they have been guilty of unprofessional conduct, in that they solicited business, or rather caused another to solicit business for them, through entering into the following contract: "This agreement, made and entered into this 19th day of June, 1917, by and between the Merchants' Protective Corporation, organized and existing under the laws of the state of Indiana, and authorized to do business in the state of Washington, the party of the first part, and Gill, Hoyt & Frye, attorneys at law, of Seattle, Washington, the parties of the second part, witnesseth: "That both parties hereunto are mutually desirous of entering into an agreement whereby said second parties are to represent the first party as its attorney with clients in office advice and consultations free, free representation as defendants in police and justice of the peace courts only. "Now, therefore, for and in consideration of the mutual agreements herein contained, it is mutually agreed by and between the parties hereto that the second parties shall act as attorneys for members holding paid membership certificates in the company of the first part in matters covered as above and by said membership certificate, and shall receive therefor in advance from the party of the first part the sum of one ($1) dollar per client for new clients and the sum of two ($2) dollars in renewed members per year, for which they shall furnish consultation and advice, legal and otherwise, at their office, and defend members in police court and the justice court in accordance with the membership certificate marked Exhibit A. "It is further mutually agreed that said parties of the second part shall look after collections for said members on the basis of 10 per cent. unless otherwise agreed upon, except when suit is brought. "It is further agreed that said second parties are not to render any services without compensation from members of said corporation, except as herein stated and in the membership certificate attached hereto and marked Exhibit A. "It is further agreed that at all times during the existence of this agreement the second party will forward all legal papers and collections whenever possible to do so to associated offices of the first part. "The parties hereto further agree that this contract shall continue for a period of time covered by the various subscription membership certificates from which the second parties "In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written. Executed in duplicate. [Signed] The Merchants' Protective Association, by Sam Cohen. [Signed] Gill, Hoyt & Frye, Attorneys at Law. "Exhibit A. "The Merchants' Protective Corporation. "(Incorporated 1913.) "This is to certify that is admitted to entitled to legal advice and consultation on all membership in the above corporation, and is personal business or private matters, without charge at the office of the attorneys retained by and at the expense of the above corporation, for the period of one year from the date hereof. "Members are defended in all civil or criminal actions brought against them, at any time, in police court or justice of the peace courts, of this city, without charge by our attorneys. "Members receive legal advice and information on all new state laws or ordinances of this city, without charge. the above member from loss thru fraud, bad "The object of this corporation is to protect credits, bad checks, unfair claims, and to arbitrate all matters when dissension arises. "Warning. above member will be prosecuted to the full ex"All persons committing crimes against the tent of the law. "In witness whereof, the corporation has caus day of ed this certificate to be signed by its duly authorized officer and sealed with the seal of the company, this 191-. "[Seal] S. Reiker, President. "Gill, Hoyt & Frye, Attorneys." It plainly appears that the Merchants' Protective Corporation has no business in Seattle or elsewhere, other than the solicitation of members and the collecting of the membership fees, the larger part of which fees are retained by the corporation; the balance being turned over to attorneys with whom it may have entered into contracts of this nature, in a number of different cities and towns throughout the country. Several hundred members were obtained and membership fees collected in Seattle from them by the corporation's representative; the accused receiving their share thereof under the terms of the contract. They continued to receive such fees and render services in pursuance of the terms of the contract for a considerable time, up until the commencement of this investigation, when they voluntarily ceased to receive the fees or render service under the contract. It seems to us that the solicitation of law business in this manner constituted unprofessional conduct, subjecting the accused to discipline. It may not be an easy matter, under all conditions, to say just what acts constitute unprofessional conduct in the soliciting of business; but we think that the employment of or contracting with another by an attorney, looking to the soliciting of business by the other for the attorney, has always been regarded as unprofessional. Among the numerous decisions so Commonwealth, 171 Ky. 77, 186 S. W. 919; Holland v. Sheehan, 108 Minn. 362, 122 N. W. 1, 23 L. R. A. (Ń. S.) 510, 17 Ann. Cas. 687; Ingersoll v. Coal Creek Co., 117 Tenn. 263, 98 S. W. 178, 9 L. R. A. (N. S.) 282; 119 Am. St. Rep. 1003, 10 Ann. Cas. 829; Matter of Clark, 184 N. Y. 222, 77 N. E. 1; Ellis v. Frawley, 165 Wis. 381, 161 N. W. 364. There was, however, no fraud or moral turpitude on the part of the attorneys in volved. It remains but to determine what the judgment shall be in this particular case. This, of course, is a matter of discretion, to be determined in view of all the facts shown. There is no absolute standard to guide us in this case. Each of the accused, it plainly appears from the evidence, has practiced law for 18 years or more in our courts without any accusations of unprofessional conduct of any nature being made against either of them. Indeed, until this accusation was made, each seems to have borne a professional reputation of the highest order. The nine superior judges for King county, in whose courts the accused have had a large practice, testify to their good professional reputation. Eleven of the leading attorneys of Seattle, among whom is a former judge of this court, also testify to the professional reputation of the accused as good. There is nothing in this record suggesting otherwise prior to the comparatively recent occurrence of the facts upon which this prosecution is rested. We feel constrained to hold that we should not now subject either of the accused to any further punishment than has already been suffered by them through the publicity of this prosecution, and this record of our disapproval of the contract made by them with the Merchants' Protective Corporation as unprofes sional. MAIN, C. J., and CHADWICK, FULLERTON, MOUNT, MITCHELL, TOLMAN, and HOLCOMB, JJ., concur. MACKINTOSH, J., took no part. MT. VERNON NAT. BANK v. FIRST NAT. Default judgment against garnishee, entered through inadvertence of garnishee and mistake of clerk in filing answer, can be vacated upon motion, notwithstanding Rem. Code 1915, § 467. MOUNT, J. This appeal is from an order of the trial court vacating a judgment taken by default against the First National Bank of Monroe. The plaintiff has appealed. It appears that the appellant brought an action against the defendants McCormick and Thompson to recover a balance due upon At the time the action. a promissory note. was brought, the appellant applied for a writ of garnishment, and such writ was issued and served upon the First National Bank of Monroe on the 11th day of December, 1916. At the time of the service of the writ, the cashier of the respondent bank noted upon a desk pad the time when he should file an answer. By inadvertence and mistake this date was after the date required by law when the answer should be made. When the 20 days expired for answer, the appellant applied for a default judgment against the respondent. A judgment was entered for the full amount claimed against the defendants in the original action. The respondent, having no notice of the default action, prepared and filed an answer denying any indebtedness or any property under its control belonging to the defendants in the original action. This answer, by mistake of the clerk, was filed in another case. Thereafter, the respondent was notified that a judgment had been entered, and immediately filed a motion to vacate the judgment upon the grounds of inadvertence, mistake, and excusable neglect. This motion was based upon an affidavit stating the facts substantially as above, and also showing that an answer had been filed denying any liability. The affidavit also showed that prior to the time the answer was filed a copy thereof was mailed to the attorneys for the appellant. The attorneys for the appellant, however, denied that they had received a copy of the answer. This motion was heard by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |