Albin v. Seattle Elec. Co.

• Decision Date: 07 September 1905
• Citation: 82 P. 145,40 Wash. 51
• Parties: ALBIN et ux. v. SEATTLE ELECTRIC CO.
• Court: Washington Supreme Court

82 P. 145

40 Wash. 51

ALBIN et ux. v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

September 7, 1905

Appeal from Superior Court, King County; George C. Hatch, Judge.

Action by John Albin and wife against the Seattle Electric Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Hughes McMicken, Dovell & Ramsey, for appellant.

John B Hart and H. E. Snook, for respondents.

CROW, J.

This action was instituted by respondents, John Albin and Anna Albin, husband and wife, against the Seattle Electric Company, to recover for personal injuries sustained by said Anna Albin. Appellant was operating a line of street cars between Ballard and the city of Seattle, and over Western avenue in the latter city. Said Anna Albin boarded one of appellant's cars at a point known as 'Smith's Cove,' intending to alight at the intersection of Western avenue and Pike street. The specific acts of negligence charged in the complaint are alleged in the following language: 'That on said 9th day of January, 1902, the said plaintiff Anna Albin became a passenger on one of said defendant's cars running over the streets and ways, as aforesaid, taking passengers thereon at or near said place known as 'Smith's Cove'; that she was going to a point where said Western avenue intersects Pike street in the city of Seattle, Washington; that there was a large number of other passengers on said car; that it was dark, being about 8:00 o'clock p. m.; that plaintiff Anna Albin informed the defendant, by its conductor, servant, and employé, as aforesaid, that she was going to said place--Western avenue and Pike street, as aforesaid--and wanted to get off of said car at said place; that on the car reaching the vicinity of said Western avenue and Pike street, as aforesaid, the conductor being in charge of said car announced said intersection of Pike street, and was told again that said plaintiff Anna Albin was desirous of leaving said car at said place; that in the vicinity of Pike street aforesaid, and a little south thereof, the car was stopped and brought to a standing still position; that said plaintiff, having arisen from her seat, went to the rear end of said car for the purpose of alighting therefrom; that said car was one of the larger class of cars used by defendant in the city of Seattle; that on each end of said car and on the sides thereof there were openings through which passengers passed in entering and leaving said cars; that just as the said plaintiff Anna Albin was at the rear end of said car, and making ready and intending to depart therefrom, the said defendant, and its servants and agents and employés negligently and carelessly, and without any warning or notice whatsoever, started, ordered, and caused said car to start and move forward rapidly and violently, and with a jerk; that the place where said car was stopped was a little south of Pike street, on an incline of the trackage and said track was wet and slippery; that on starting said car a large amount of force and electricity was turned on which, together with the incline of said tract and its slippery condition, caused said car to lurch and jerk violently and rapidly forward; that the said plaintiff Anna Albin, being just about to alight from said car, and to step from the rear end thereof onto the steps thereof and thence to the ground, when said car started forward, as aforesaid, with the violent lurch and jerk, as aforesaid, was by said movement of said car thrown against the rear end of said car, and onto the floor of said car, and from said car onto the steps, and thence onto the ground beneath, with great force and violence; that on striking said car, its steps, and the ground, the said plaintiff Anna Albin was jerked forward and thrown to said ground with great force and violence, through the carelessness and negligence of the defendant, its servants, agents, and employés.' The complaint then proceeds to describe the injuries sustained by said Anna Albin, and contains in the same paragraph the following allegation: 'That the injuries herein complained of were caused through the carelessness and negligence of the defendant, its servants, agents, and employés, and not through any act on the part of the plaintiff whatsoever.' All these allegations of negligence were denied by the answer, which by way of affirmative defense also pleaded contributory negligence. This affirmative defense was denied by the reply.

Upon the trial no evidence was produced showing that said car came to a stop prior to respondent leaving it or being thrown from it. Evidence was introduced tending to show that the tracks which were on a heavy descending grade, were very slippery; that the motorman was unable to bring the car to a stop at Pike street; that it continued to move until it reached the next crossing, at Union street; that while it was still moving, respondent Anna Albin arose from her seat, and walked to the rear platform, for the purpose of alighting; and that while she was on said platform, the car, which was still moving, by making a sudden and violent jerk or lurch, threw her to the street. Other evidence was admitted, over appellant's objection, tending to show that said car was in a defective condition, in that the front and back brakes were not properly adjusted by being evenly balanced, and in that one of the sand boxes was out of repair. The case was not tried on the theory that the car actually stopped or came to a standing position, as alleged in the complaint, or that respondent, while trying to alight from such stationary car, was violently thrown to the street by its sudden starting, but was tried on the theory that she was thrown from a moving car by its sudden jerks or lurches. The evidence as to the condition of the brakes and sand box was admitted in support of this latter theory; respondents' claim, as we understand it, being that these defective conditions either caused the jerks or lurches or contributed to their violence. We think the evidence of all the experts who testified, whether for appellant or respondents, had a tendency to show that the defective condition of the brakes and sand box claimed to have existed would not have any...