Allen v. Schultz

• Decision Date: 12 June 1919
• Docket Number: 15202.
• Citation: 107 Wash. 393,181 P. 916
• Court: Washington Supreme Court
• Parties: ALLEN v. SCHULTZ et al.

181 P. 916

107 Wash. 393

ALLEN v. SCHULTZ et al.

No. 15202.

Supreme Court of Washington, En Banc.

June 12, 1919

Appeal from Superior Court, Spokane County; David W. Hurn, Judge.

Action by Cora Allen, by J. R. Allen, guardian ad litem, against Christ Schultz and another. Judgment for plaintiff, and defendants appeal. Affirmed.

S. L Americus, of Hillyard, and F. C. Highsmith, of Spokane, for appellants.

Losey &amp Newton, of Spokane, for respondent.

FULLERTON J.

The respondent, Cora Allen, while alighting from a street car on one of the streets of the city of Spokane, was struck and injured by an automobile owned by the appellant Christ Schultz and driven by the appellant Jake Schultz. She brought this action to recover for the injuries received, averring in her complaint that the accident was the result of negligence on the part of the driver of the automobile. Negligence was denied in the answer of the appellants, and a trial had on the issues thus framed, which resulted in a verdict and judgment in favor of the respondent. On their appeal the appellants assign that the court erred in its instructions to the jury, erred in refusing to grant their motion for a new trial, and erred in entering judgment against the appellant Christ Schultz.

There are certain facts surrounding the transaction which are undisputed. The accident causing the injury occurred at the intersection of Howard street and Augusta avenue in the city named. Howard street at this place extends north and south is 60 feet in width, and has upon it a double street car track upon which is operated the street cars of the Washington Water Power Company. Augusta avenue is 30 feet wide and crosses Howard street at a right angle. On the square adjoining Howard street on the east and Augusts avenue on the north is a high school building in which the respondent was a student. The street intersection is a usual stopping place for the cars of the street car company named and is the usual alighting place for students of the high school who use the cars as a means of transportation to the school. On the morning of the accident, the respondent, with other students of the high school, came in on a car from the north. The car stopped at the intersection of the streets, and one of the high school students got off. The respondent followed, getting off the car backwards, and was struck by the fender of the appellant's automobile just as she had reached the ground and while she was still holding to a stanchion on the side of the car steps. She was knocked down by the car which passed on to her left, colliding before stopping with an automobile truck which stood some distance back of the end of the street car.

The automobile approached the street car from the west coming along Augusta avenue, which has a downgrade at that place. It was traveling near the center or to the right of the center of the avenue, and, instead of turning to the right toward the front of the street car, turned to the left in an effort to pass the car at its rear end. The principal dispute in the evidence is over the speed of the automobile when it approached and attempted to go behind the street car and the necessity for its turning in that direction.

The respondent's witnesses testified that the automobile approached the street car at a rather high rate of speed and was traveling at from 15 to 20 miles per hour when it struck the girl. They also testified that the street car on stopping at the street interesection protruded into Augusta avenue about one-fourth of the distance across it, and that there was nothing to prevent the automobile from passing the street car at the front or from turning to the right and passing down the street on the right-hand side of the street.

The driver of the automobile testified, and in this he is corroborated by the two persons riding in the car with him that the automobile approached the car at a slow rate of speed and was going no faster than four miles an hour when it turned to the left to pass the car. He further testified that the street car extended, when it stopped, almost if not quite across Augusta avenue, and that he was prevented from turning to the right because of an automobile which stood in Howard street near the front end of the street car at the south side of Augusta avenue. He further testified that the street car approached the street intersection rapidly, so rapidly in fact that he thought it was going through without stopping, and that he thought because of that fact that he could slack up and go behind it, and that he was within about eight feet of it when it actually stopped. In explanation of the fact that he did not stop the automobile before striking the respondent, he testified that the brakes were not in good condition, being too loose to furnish sufficient pressure on the brake drums to stop the automobile. He also testified that, after the street car stopped, a passenger, a high school girl, got off the car ahead of the respondent, and that the respondent got off the car backwards. It was shown without dispute that the respondent had been a cripple for many...