TRIAL (83-1) — INSTRUCTIONS — FORM AND REQUISITES — REPETITION — PREJUDICIAL EFFECT. Repetition or redundancy in instructions does not justify a reversal unless it is carried to an extent to be prejudicial. MUNICIPAL CORPORATIONS (380, 383) — CONTRIBUTORY NEGLIGENCE — VIOLATION OF ORDINANCE. Under our rule that the burden of proving contributory negligence is upon the defendant, it is proper to instruct that the defense of contributory negligence, in the violation of a statute, is not established unless such violation proximately contributed to the injury (Overruling Millspaugh v. Alert Transfer Storage Co., 145 Wn. 111, 259 P. 22). Appeal from a judgment of the superior court for King county, Chapman, J., entered October 30, 1933, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.
"One injured while in the act of disobedience of them [statutes regulating traffic] should be compelled to show with clearness that his act in no way contributed to his injury." In Millspaugh v. Alert Transfer Storage Co., 145 Wn. 111, 259 P. 22, it was held: "It is settled law in this state that a thing done in violation of positive law is in itself negligence. . . . But it does place the burden upon the party guilty of a violation of positive law to show that such violation did not contribute to the injury in any material degree.
It was held that an instruction that the operation of a motor vehicle at such a rate of speed that the driver could not stop within the distance at which an obstruction in the highway could be seen by his own headlights constituted negligence per se was erroneous; that each case must be considered by the jury in the light of its facts and circumstances and the usual tests applied to determine whether there was a failure to exercise ordinary care in the operation of such motor vehicle. See also Morehouse v. City of Everett, 141 Wn. 399, 252 P. 157, 58 A.L.R. 1482; Moyer v. Vaughan's Seed Store, 242 Ill. App. 308; Burgesser v. Bullock's, 190 Cal. 673, 214 P. 649; Millspaugh v. Alert Transfer Storage Co., 145 Wn. 111, 259 P. 22. Anderson on Automobile Accident Suits, page 1291, section 1055, states the law as follows: "It is error to instruct the jury that operation of an automobile in such manner that it could not be stopped in the range of its lights is negligence per se."
Annos. 14 A.L.R. 794; 113 A.L.R. 1261; 40 A.L.R. 1243. It is negligence per se to drive an automobile along a public highway without displaying lights as provided by law. Sheppard v. Johnson, 11 Ga. App. 280, 75 S.E. 348; Fisher v. O'Brien, 99 Kan. 621, 162 P. 317; Page v. Neiland, 40 Ohio App. 141, 178 N.E. 710; Millspaugh v. Alert Trans. Co., 145 Wn. 111, 259 P. 22; Wetherley v. Bangor A.R. Co., 131 Me. 4, 158 A. 362. Plaintiff was under duty to drive his car at a speed that was reasonable having regard to the condition of the traffic, the road, and the weather.
Where, however, it is found that an act is a proximate cause of the injury, it can never be excused as being the act of an ordinary, prudent person, where it is in direct violation of the law. Twedt v. Seattle Taxicab Co., 121 Wn. 562, 210 P. 20; Millspaugh v. Alert Transfer Storage Co., 145 Wn. 111, 259 P. 22; Zurfluh v. Lewis County, 199 Wn. 378, 91 P.2d 1002. Here, the court found that the defective headlight and the rate of speed under the existing conditions were proximate causes of the injury, and, since they were in violation of the law, they constituted contributory negligence.
State v. Brunn, 144 Wn. 341, 258 P. 13, overruled on rehearing 145 Wn. 435, 260 P. 990. Millspaugh v. Alert Transfer Co., 145 Wn. 111, 259 P. 22, overruled by Bredemeyer v. Johnson, 179 Wn. 225, 36 P.2d 1062. See Twedt v. Seattle Taxicab Co., 121 Wn. 562, 210 P. 20; Benson v. Anderson, 129 Wn. 19, 223 P. 1063, Weaver v. Windust, 195 Wn. 240, 80 P.2d 766; and Zurfluh v. Lewis County, 199 Wn. 378, 381, 91 P.2d 1002.
"This court has generally held that the violation of a positive statute by an injured party which contributes to his injury, except in exceptional cases where there was some emergency, will be held, as a matter of law, to be the proximate cause of such injuries, barring recovery. Twedt v. Seattle Taxicab Co., 121 Wn. 562, 210 P. 20; Benson v. Anderson, 129 Wn. 19, 223 P. 1063; Linville Brothers v. Bliesner, 133 Wn. 677, 234 P. 1019; Millspaugh v. Alert Transfer Storage Co., 145 Wn. 111, 259 P. 22; Keller v. Breneman, 153 Wn. 208, 279 P. 588, 67 A.L.R. 92; Price v. Gabel, 162 Wn. 275, 298 P. 444; Walters v. Knox, 165 Wn. 424, 5 P.2d 780." Metcalf v. Mud Bay Logging Co., 170 Wn. 59, 15 P.2d 278.
Failure to perform such a duty is in itself negligence, Twedt v. Seattle Taxicab Co., 121 Wn. 562, 210 P. 20; Benson v. Anderson, 129 Wn. 19, 223 P. 1063, and placed upon the operator of the truck the burden of showing that such violation of the statute did not contribute to the injury in any material degree. Millspaugh v. Alert Transfer Storage Co., 145 Wn. 111, 259 P. 22; Weaver v. Windust, 195 Wn. 240, 80 P.2d 766. [2] The question of proximate cause is usually for the jury upon the facts.
This court has generally held that the violation of a positive statute by an injured party which contributes to his injury, except in exceptional cases where there was some emergency, will be held, as a matter of law, to be the proximate cause of such injuries, barring recovery. Twedt v. Seattle Taxicab Co., 121 Wn. 562, 210 P. 20; Benson v. Anderson, 129 Wn. 19, 223 P. 1063; Linville Brothers v. Bliesner, 133 Wn. 677, 234 P. 1019; Millspaugh v. Alert Transfer Storage Co., 145 Wn. 111, 259 P. 22; Keller v. Breneman, 153 Wn. 208, 279 P. 588, 67 A.L.R. 92; Price v. Gabel, 162 Wn. 275, 298 P. 444; Walters v. Knox, 165 Wn. 424, 5 P.2d 780. The judgment of the trial court was correct, and is affirmed.
This view of the law was adhered to in Benson v. English Lumber Co., 71 Wn. 616, 129 P. 403, Rhimer v. Davis, 126 Wn. 470, 218 P. 193, and Sigol v. Kaplan, 147 Wn. 269, 266 P. 154. The following of our decisions recognize this to be the law, though, upon the facts, the plaintiffs therein were held guilty of contributory negligence, as a matter of law: Twedt v. Seattle Taxicab Co., 121 Wn. 562, 210 P. 20; Benson v. Anderson, 129 Wn. 19, 223 P. 1063; Millspaugh v. Alert Transfer Storage Co., 145 Wn. 111, 259 P. 22; Keller v. Breneman, 153 Wn. 208, 279 P. 588. It seems to us that this case calls for carefully taking note of the distinction between negligence which, in some substantial manner, proximately contributes to damage, and negligence constituting "a remote cause or a mere condition" attending the occurrence of damage.