Atherton v. Tacoma Ry. & Power Co.

• Decision Date: 16 December 1902
• Citation: 30 Wash. 395,71 P. 39
• Court: Washington Supreme Court
• Parties: ATHERTON v. TACOMA RY. & POWER CO. et al.

71 P. 39

30 Wash. 395

ATHERTON v. TACOMA RY. & POWER CO. et al.

Supreme Court of Washington

December 16, 1902

Appeal from superior court, Pierce county; W. O. Chapman, Judge.

Action by Arthur Atherton against the Tacoma Railway & Power Company and others. Judgment for defendants. Plaintiff appeals. Reversed.

Govnor Teats, for appellants.

C. O Bates and B. S. Grosscup, for respondents.

REAVIS C.J.

Action by plaintiff (appellant) claiming damages for personal injuries against the Tacoma Railway & Power Company, a corporation organized under the laws of New Jersey, and operating an electric street railway in Tacoma, and Steffins the motorman and servant of said railway, defendants. The claim of damages is founded on the joint negligence of the defendants in the operation of the car. The allegations of negligence are: 'That upon the evening of the 7th day of December, while the plaintiff was coming down said 21st street with a heavily loaded wagon, hauled by two horses crossing the said railway track at the intersection of 21st and Pacific avenue, the said plaintiff was permanently maimed and injured and wounded by the negligence of the said defendant company and its agent, servant, and motorman, Clinton A. Steffins, who was in charge of the said car No. 23, struck and collided with the plaintiff and his wagon and team while the plaintiff was on his way down said 21st street and passing over and across said Pacific avenue at the intersection of said streets. * * * That, at the time and place where and when the plaintiff received the injuries aforesaid, the defendant Steffins was and for a long time theretofore had been a servant of the defendant company in charge and control of said car 23, and for a long time theretofore had been continuously motorman of said car, and said negligence of the said defendant company was done by and through its said servant then and there in its employ, and said negligence was the joint negligence of the said defendants, to wit, in running its said car from 24th street to the point of collision at an unreasonable and unlawful rate of speed to wit, at the rate of 30 miles per hour, contrary to the said ordinance of the city of Tacoma. That said unlawful and unreasonable speed was in obedience to instructions of the defendant company. That at said time of the collision, to wit, 5:30 o'clock p. m. on the said 7th day of December, 1900, and at the said place along Pacific avenue, it was dark and foggy, and the street car was run and conducted without any bells ringing or any alarms given of its approach to the said crossing of the said 21st street, and in utter disregard of the rights of vehicles crossing at 21st street, and especially this plaintiff. That the said plaintiff, when within about 100 feet of the said crossing, looked both ways up and down Pacific avenue from said 21st street, and saw the said car No. 23, which collided with plaintiff as herein charged, at or about 23d street, a distance of about 800 feet from the crossing of 21st street; and, had the said car run at a reasonable and lawful rate of speed along down said Pacific avenue towards 21st street, plaintiff would have had ample and sufficient time to have crossed the said street car track, as he had a right to do.'

The city ordinance limited the rate of speed of the car, at the place where the accident occurred, to nine miles per hour. The defendants answered separately, denying negligence on their part, and setting up affirmatively contributory negligence of the plaintiff, which is stated in paragraph 1 of the affirmative defense of the railway company, as follows: 'That the collision and accident complained of by the plaintiff occurred solely by reason of the careless and negligent conduct of the plaintiff in failing to take proper or any precautions to guard against the same, and in failing to take proper or any precautions to ascertain whether said car or any car was coming along Pacific avenue at said time and place, or whether it was safe to cross said street car track at said time and place, and without observing the situation at said time and place, and without observing the danger thereof; and, had the plaintiff used proper or any precautions in said respects, or any of them, he could have avoided said collision and said accident. This defendant further alleges that said collision and accident occurred solely by reason of the careless, negligent, and willful conduct of said plaintiff in attempting to drive across and in driving across said street car track in full view of an approaching car, and with full notice and knowledge of the imminence of said collision and of the danger thereof.'

The evidence for plaintiff tended to show that he saw the car on Pacific avenue, between 700 and 800 feet away, when he was on the cross street,--21st street,--about 100 feet from the car track on the avenue; that he then believed he could safely cross before the car reached the intersection of 21st street and Pacific avenue; that there were some obstructions preventing a clear view of the car, the headlight of which he had seen, until he was about crossing Pacific avenue; that he was driving a heavily loaded van, which was covered, the covering extending a little forward of the driver's seat and his attention, as he reached the avenue upon which were the tracks, was chiefly directed to the management of his horses. Several witnesses for plaintiff stated that no bell was sounded or signal given of the approaching car, and that the car was running at a high rate of speed, the street being downgrade, and at a rate differently stated as from 20 to 30 miles per hour. It was at the time dark, and a fog prevailed. The evidence on the part of the defendants tended to show that the bell was rung and the signals of the approaching car were duly given, and that the car was running at less than nine miles per hour, and at a moderate rate of speed. The evidence upon all the material issues was substantially conflicting. The plaintiff tendered evidence to show that the customary and habitual rate of speed of the cars of the defendant railway company on Pacific avenue was in excess of nine miles per hour, and that such cars were customarily and habitually run at a high and dangerous rate of speed. This evidence was rejected. The court instructed the jury as follows: '(1) In this case you have two questions to pass upon: First, whether or not the defendants were negligent; second, whether or not the plaintiff was careless and negligent in his conduct, and whether, by the use of proper or any precaution, he could have avoided the accident. If you find that the defendants were negligent in the manner that the plaintiff has alleged in his complaint, and that the accident did not occur by reason of the careless and negligent conduct of the plaintiff, then you can go further and inquire into the question of damages. First you must find that the negligence, if your verdict be against the defendant, did occur through the wrongful acts of the defendants, before you can inquire into the question of damages. If you find that the plaintiff was also negligent, as alleged in the defendants' answer, then you need go no further, and your verdict should be for the defendants. (2) The court instructs you further that the burden is upon the plaintiff to make out and establish affirmatively, by a preponderance of the evidence, the truth of all material allegations contained in his complaint, and, to enable the plaintiff to recover for the injuries of which he complains, he is bound to show affirmatively the wrongful act or omission of the defendants alleged in his complaint; he is bound to show that he sustained injuries by reason of such wrongful or negligent acts; that such injuries as he sustained and from which he now suffers, if any, were the result of such wrongful and negligent act; and said burden of proving such acts rests upon the plaintiff throughout the trial, and never...