
    [No. 25012.
    Department Two.
    July 11, 1934.]
    Sam Lamping et al., Respondents, v. George Ripley, Appellant.
      
    
    
      Whittemore & Truscott, for appellant.
    
      Poe, Falknor, Falknor & Emory, for respondents.
    
      
       Reported in 34 P. (2d) 459.
    
   Tolman, J.

These four cases, all growing out of the same accident, were consolidated for the purpose of trial and tried to the same jury. By stipulation, they have also been consolidated for the purposes of this appeal.

An automobile owned by respondents and driven by the respondent wife came into a head-on collision with the machine operated by the appellant on Thirty-second avenue in the city of Seattle in the evening of a July day in 1932, resulting in personal injuries to the respondent wife and to each of the three minor children of the respondents who were riding with her.

The trial to the jury resulted in a verdict iu favor of the defendant in each case. In each case, the plaintiff, or plaintiffs, moved for a new trial. In the case in which the husband and wife are plaintiffs, the new trial was granted because of supposed error in instructing the jury and upon no other grounds. In each of the other cases, in addition to the error in the instructions, the order granting the new trial was based upon the further grounds that the verdicts were contrary to law, against the weight of the evidence, and that substantial justice had not been done.

Since this appeal was taken, this court, in the case of Brammer v. Lappenbusch, 176 Wash. 625, 30 P. (2d) 947, has construed chapter 138, Laws of 1933, p. 481 (Rem. 1933 Sup., §399), relating to new trials, and the appellant here concedes that that case is decisive against him in each of the cases brought on behalf of the minors. Since the former decision is not now questioned and we are not asked to re-examine the subject there decided, the order of the trial court granting new trials in the three cases affecting the minors will stand affirmed without further discussion.

There remains only the question of whether a new trial was rightfully granted in the case brought by the husband and wife, and that question is to be answered by an examination of a single instruction which the trial court held to be erroneous. The instruction given, reads:

“The law recognizes that men are often called upon to act in sudden emergencies without much time for thought or consideration. The conduct of parties to a collision is not necessarily to be judged by the facts as they now appear before you, but such party is entitled to have his acts and conduct considered in the light of the facts as they appeared to him at the time. It is not necessarily what was the safest thing to do or what was the wisest thing to do or what could or ought to have been done, but the question is did the party at the time act as a reasonably cautious, prudent driver under tbe circumstances would bave acted. If be did, then be cannot be charged with negligence even though be did not do wbat you now believe would bave been tbe safest or tbe wisest thing for him to bave done. ’ ’

To tbe giving of this instruction, tbe following exception was taken:

“Comes now tbe plaintiff and excepts to instruction No. 8 given by His Honor on tbe question of emergency, because tbe instruction is wholly inapplicable to tbe accident in question. If an emergency arose here it arose through tbe negligence of tbe defendant, and therefore tbe instruction as to bis conduct under such circumstances cannot be determined by tbe ordinary instruction in an emergency. ’ ’

So it will be seen that tbe instruction is questioned only because it did not state tbe exception to tbe general rule to tbe effect that one who, by bis own negligent act, creates an emergency cannot invoke tbe rule for bis own protection.

It is fair to state that neither party requested this instruction, and that it was given by the court of bis own motion. It may further be said that each party was stoutly maintaining that tbe negligence of tbe other created tbe emergency, if any there was, and bad tbe qualifying exception been embodied in tbe instruction, each would no doubt bave argued to tbe jury that bis client only could claim tbe benefit of tbe emergency rule. It is therefore rather difficult to say that tbe verdict would bave been different if tbe instruction bad set forth tbe exception to tbe general rule.

However, our decision is not to be based upon wbat tbe jury might or might not bave done, but rather upon tbe question of tbe duty resting upon tbe party who took exceptions to tbe instruction.

Concededly, tbe instruction, as given, correctly states the general rule, and contains no erroneous matter. Its sole fault (if that be a fault) is that it did not go further, and set forth an exception or qualification thought to be applicable in this particular case. The subject was clearly in the mind of counsel when he took his exception, and had he even then proposed a further instruction giving the exception to the general rule, the court would no doubt have given it. Jury trials are serious and expensive things, and the public, as well as the parties, are interested in having cases once fairly tried and finally disposed of. Repeated trials of the same issue are to be encouraged only when, in spite of care and diligence, error has been committed and injustice has been done. Here, though the instruction as given may have been a two-edged sword, still counsel ought not to be permitted to withhold a proper request for an additional instruction, speculate upon the jury’s verdict, and then, after losing, still claim an error which would have been cured in ample time if he had acted with diligence.

Speaking upon an exactly similar omission from an instruction in the case of Brammer v. Lappenbusch, supra, this court said:

“As to the second phase of the instruction, the exception goes not to the incorrectness of what was contained therein, but rather to what was omitted from it. While the instruction might well have included the emergency feature, the court was not required to amend an otherwise correct instruction, in the absence of a request by appellant. The court need not be more diligent than the party. Ziomko v. Puget Sound Electric Co., 112 Wash. 426, 192 Pac. 1009. One of the chief-defenses of appellant was that he was called upon to act in an emergency. Hence, a proper request should have been made by him regarding that issue. An exception does not take the place of a request. Allend v. Spokane Falls & N. Ry. Co., 21 Wash. 324, 58 Pac. 244.”

The same rule was applied in Anselmo v. Morsing, 166 Wash. 111, 6 P. (2d) 377, 9 P. (2d) 100, and we consider these cases as settling the practice in this respect.

The order granting a new trial in the case of the husband and wife is reversed, with directions to enter judgment on the verdict. In the other cases, the orders appealed from will stand affirmed.

Beals, C. J., Blake, Gebaghty, and Holcomb, JJ., concur.  