Beach v. Pacific Northwest Traction Co.

• Decision Date: 13 July 1925
• Docket Number: 19321.
• Citation: 135 Wash. 290,237 P. 737
• Parties: BEACH v. PACIFIC NORTHWEST TRACTION CO.
• Court: Washington Supreme Court

237 P. 737

135 Wash. 290

BEACH v. PACIFIC NORTHWEST TRACTION CO.

No. 19321.

Supreme Court of Washington

July 13, 1925

Department 2.

Appeal from Superior Court, King County; Tallman, Judge.

Action by Vincent C. Beach, as administrator of Maybelle Beach against the Pacific Northwest Traction Company Judgment for plaintiff, and defendant appeals. Reversed, with directions.

James B. Howe and Hugh A. Tait, both of Seattle, and J. A. Coleman of Everett, for appellant.

John F Dore, of Seattle, for respondent.

MITCHELL J.

Vincent C. Beach has sued as administrator of the estate of his deceased wife to recover damages for her death alleged to have been caused by the negligence of the Pacific Northwest Traction Company, a corporation. The answer was a denial of negligence and an affirmative plea of contributory negligence. The defendant has appealed from a judgment for the plaintiff on the verdict of the jury.

The appellant operates an interurban railway between Everett and Seattle. Within the city limits of Seattle its cars are run on street car tracks owned by the city on Westlake avenue. On a stormy evening, after dark, Mrs. Beach was struck by a passing interurban car at or near a passenger platform on the avenue, causing injuries from which she died two days later. It may be said that at this place the avenue runs north and south. The platform, about 5 feet wide, is immediately on the west side of the westerly street car track on which the interurban car going south was being operated. The platform was built and is maintained in connection with the service of the city's street car system only. It is not used by the appellant. Its surface is about level with the top of the rails of the street car tracks. The street car tracks are laid on a dirt and gravel roadbed, are all exposed, and the portion of the avenue occupied by them is not intended for other uses. Immediately to the west of the platform the avenue is paved in two strips, one being used by north-bound and the other by south-bound vehicle traffic. Approaching the platform from the north the car tracks are straight for a distance of 300 to 500 feet, according to the estimates of the witnesses. The scene of the accident was not strange to the decedent. At the time of the accident she and her mother were at the platform to take a street car south to another part of the city.

The several allegations of negligence made in the complaint, and as the case was given to the jury, were: (1) The failure to have on the interurban car any light visible in advance of it; (2) failure to give or sound any horn, gong, or other warning of the approach of the car; (3) failure to give notice or warning to persons standing on the platform of the fact that the car in passing overhung the platform about two feet; and (4) that the car was operated at an excessive and unlawful rate of speed. In considering the case, we ignore the account on behalf of the appellant as to how the collision occurred, where the deceased was at the time it happened, and the reasonable speed of the car decidedly unfavorable to the respondent. The conclusion we reach requires that only the evidence most favorable to the respondent, together with that which is wholly undenied, be considered. On behalf of the respondent there were only two witnesses who testified as to the manner of the happening of the accident. One, the mother, said she and the decedent were on the platform to take a street car to another part of the city when the accident occurred. She did not testify as to the speed of the car or of the lights on it, nor as to the size of the car or the direction it was going, nor did she testify as to whether or not any bell or gong was sounded by the car as it approached and passed the platform. The other witness, employed at a gasoline service station across the avenue at a point 50 feet south of the platform, saw the accident. He went...