
    [No. 14779.
    Department Two.
    July 16, 1918.]
    Edward Peterson, Respondent, v. Chris Pallis, Appellant.
      
    
    Municipal Corporations — Use op Streets — Actions por Negli- gence — Pleading. In an action for personal injuries sustained in a collision with an automobile, a complaint, alleging that defendant was driving at an unlawful speed and pleading an ordinance fixing the speed limit at twenty miles an hour, is good as against a motion to strike or make more definite and certain; Rem. Code, § 291, providing that the court shall take judicial notice of an ordinance so pleaded.
    Same — Use op Streets — Actions por Negligence — Instructions. In an action for personal injuries sustained in a collision with an automobile, it is error to instruct that the defendant would be liable if it was found that'he was driving on the wrong side of the street, where he was on the wrong side to avoid automobiles parked on the right side, and since it was not negligence per se to drive on the wrong side.
    Appeal from a judgment of the superior court for King county, Smith, J., entered December 12,1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.
    Reversed.
    
      Ryan & Desmond, for appellant.
    
      Oscar G. Deaton, for respondent.
    
      
      Reported in 173 Pac. 1021.
    
   Chadwick, J.

— This action arises out of a collision between plaintiff’s motor-cycle and defendant’s automobile. Trial was had, resulting in a verdict in favor of plaintiff.

It will be necessary to notice but two assignments of error. The first is that the court erred in overruling the motion to strike certain matter from the amended complaint, and thereafter erred in denying defendant’s motion to make the complaint more definite and certain. Plaintiff alleges:

“That said accident happened more particularly as follows, to wit: the plaintiff is in the employ of the Seattle Construction and Dry Dock Co., as a ship carpenter and received a salary of $7.50 per day of ten hours; that on the day in question, which was Saturday, the employees of said company ceased work at noon; that a large number of them were crossing said Whatcom avenue at the hour above mentioned; that plaintiff was on the south side of said body of men, on his motor-cycle and was not going faster than three or four miles per hour, and had reached a point past the middle or east of the middle line of said street and was just in the act of turning north upon the east side of said street when the defendant, driving negligently and carelessly and at an unlawful rate of speed in a southerly direction upon the easterly side of said avenue, struck plaintiff’s motor-cycle, turning it around in the opposite direction from which it was going, and knocked plaintiff off said motor-cycle and ran completely over said plaintiff and his said motor-cycle.”

This was followed by a plea of ordinance No. 24,597 of the city of Seattle, by title. The statute, Rem. Code, § 291, provides that, when an ordinance is so pleaded, the court shall take judicial notice of the ordinance and its tenor and effect. It is provided in the ordinance that automobiles shall not be driven at a speed greater than twenty miles per hour between street intersections. The legal effect of the pleading is that the automobile was driven at a greater speed than twenty miles an hour. Tbe allegation, therefore, that tbe automobile was driven at an unlawful rate of speed and upon tbe easterly side of tbe avenue, made tbe complaint good as against a motion to strike and a motion to make more definite and certain.

Tbe court instructed tbe jury that it might find a verdict against tbe defendant if it found from tbe evidence that be was driving bis machine on tbe wrong side of tbe highway. This instruction was erroneous for two reasons. One is that tbe defendant was not driving bis machine on tbe wrong side of tbe highway. That be was on tbe wrong side of tbe highway at tbe time tbe accident occurred may be admitted, but tbe testimony shows that be turned bis machine to tbe wrong side of tbe highway in order to avoid vehicles that were parked along tbe right-hand side of tbe street, and continued in furtherance of an ill-timed attempt to avoid striking tbe plaintiff. Tbe other reason for bolding tbe instruction bad is that, ever since tbe case of Segerstrom v. Lawrence, 64 Wash. 245, 116 Pac. 876, we have held that it is not negligence per se to drive on tbe wrong side of a highway. Such a showing would make a prima facie case against one so charged and put upon him tbe burden of justifying bis position, but beyond this tbe law does not go. Berry, Automobiles (2d ed.), § 171; Hartley v. Lasater, 96 Wash. 407, 165 Pac. 106; see, also, Sheffield v. Union Oil Co., 82 Wash. 386, 144 Pac. 529.

Tbe mere driving of a machine on tbe wrong side of a street will not sustain a verdict unless it is shown that it was tbe proximate cause of tbe injury.

Tbe jury was instructed upon tbe doctrine of tbe last clear chance. Without reviewing tbe testimony, we are convinced that there is no room for tbe application of that doctrine in this case. Inasmuch, however, as this doctrine depends upon the facts of the particular case, and since the case must he retried, we leave that question without discussion and to the discretion of the ■ trial judge, who will hear the case upon a new record.

Reversed and remanded for a new trial.

Mount and Holcomb, JJ., concur.  