Beeman v. Puget Sound Traction, Light & Power Co.

• Decision Date: 15 April 1914
• Citation: 139 P. 1087,79 Wash. 137
• Court: Washington Supreme Court
• Parties: BEEMAN v. PUGET SOUND TRACTION, LIGHT & POWER CO.

139 P. 1087

79 Wash. 137

BEEMAN v. PUGET SOUND TRACTION, LIGHT & POWER CO.

Supreme Court of Washington

April 15, 1914

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Elmer Beeman against the Puget Sound Traction, Light &amp Power Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions to dismiss.

James B. Howe and H. S. Elliott, both of Seattle, for appellant.

Frank E. Green, of Seattle, for respondent.

CHADWICK J.

Plaintiff approached a crossing on one of the streets in the city of Seattle. When about to step from the sidewalk, he looked up the street and saw a street car about 450 feet away. The car was coming toward him, and was moving at a rate of speed alleged to be, and which the jury found to be, approximately 30 miles an hour. The headlight of the car was lighted. The crossing was muddy, and plaintiff was engaged in picking his way across the street when he was struck by the car and injured. Plaintiff was slightly deaf. He does not contend that the gong was not sounded. At the close of plaintiff's case, defendant interposed a motion for a nonsuit. This being denied, the case went to the jury. Defendant has appealed from an adverse verdict.

Several errors are assigned, but we find it unnecessary to discuss them as several propositions inasmuch as the controlling question of law is raised by reference to an instruction given and to one refused. The court instructed the jury: 'If, under the facts in this case as shown by the evidence, you find that it was the duty of the plaintiff, as a reasonably careful and a reasonably prudent man, to have looked just before he stepped upon the tracks of the defendant to see whether or not he had time to cross the tracks before the approaching car came along, and you further find that, if he had looked, he would have discovered the car which struck him in time to have avoided a collision therewith, in such case plaintiff was guilty of contributory negligence barring his recovery, and your verdict must be for the defendant.'

Appellant requested the following instruction: 'I further instruct you that, under the facts and circumstances of this case, it was the duty of the plaintiff, before crossing the track at the point where the accident occurred, to look for approaching east-bound cars, and I instruct you that, if you find from the evidence that the plaintiff failed to look to the west for approaching cars before crossing the track when, if he had looked, he would have discovered the car which struck him in time to have avoided a collision therewith, in such case the plaintiff was guilty of contributory negligence barring his recovery, and your verdict must be for the defendant.'

It will thus be seen that the question whether a duty to look was a question of fact or of law, under the particular facts of this case, was sharply drawn. Respondent relies on the case of Richmond v. Tacoma R. & Power Co., 67 Wash. 444, 122 P. 351, and Merwin v. N. P. Ry. Co., 68 Wash. 617, 123 P. 1019. There is language to be found in the Richmond Case that would seem to sustain respondent, but it cannot be applied in this case, because of the divergent facts. In the Richmond Case the plaintiff, when 45 feet from the street line, had a view of the south-bound track 200 feet away. No car was in sight. The court held that, not having seen a car, the plaintiff was not guilty of contributory negligence in continuing his way without looking; that he had a right to presume that a car, if it did approach, would not exceed the speed limit, and that, if it did not, he would have time to cross the track. Here we have a contrary state of facts. Plaintiff saw the car, and knew that one was approaching. He is charged with every duty that such notice implies. The holding of the Richmond Case is that a person does not have to keep in mind something that he did not know of, but could proceed in the security afforded by a presumption that the driver of a street car would not be negligent. Knowledge was there lacking. Here it is the principal factor in the equation.

Presumptions are indulged when certain proof is wanting; they are never allowed to displace facts. "Presumptions,' as happily stated by a scholarly counselor, ore tenus, in another case, 'may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.' That presumptions have no place in the presence of actual facts disclosed to the jury, or where plaintiff should have known the facts had he exercised ordinary care, is held in many cases, of which samples are: Reno v. Railroad, 180 Mo. loc. cit. 483 ; Nixon v. Railroad, 141 Mo. loc. cit. 439 ; Bragg v. Railroad, 192 Mo. 331 . To give place to presumptions, on the facts of this case, is but to play with shadows and reject substance.' Paul v. Railroad, 152 Mo.App. 588, 134 S.W. 7.

While no absolute duty to stop, look, and listen rests upon one who is about to cross a street car track ( Roberts v. Spokane St. Ry. Co., 23 Wash. 325, 63 P. 506, 54 L. R. A. 184; Richmond v. Tacoma R. & Power Co., supra), we do not understand that this or any other court has ever held that one knowing a street car to be approaching can shut his eyes to the fact, and step heedlessly in front of it, under the mental assumption that the car will not overtake him. Accidents are not ordained or prescribed. They happen, and generally it is the unexpected that happens. What might happen is one of the cogent factors in determining questions of relative duty. That the duty of the motorman and the pedestrian is relative has been frequently held by this court. How far a pedestrian having knowledge that a car is approaching may go, in acting upon the presumption that a car will not be operated at an excessive rate of speed or in defiance of the rights of others, is a question that is not altogether strange to the courts. In a case very much like the one at bar the Court of Appeals in the state of Missouri said: 'He had the right to indulge in the presumptions that the motorman would not run the car at a negligently high rate of speed, that he would sound the bell as the car neared the crossing, and would reduce its speed to avoid a collision, but this did not absolve him from the performance of his duty to observe the advancing car. A person approaching a railroad crossing, whether in the country or in the city, is not permitted to rely entirely on such presumptions, but must make reasonable use of his senses to guard his own safety, and the failure to do this is negligence. The duty thus to protect one's own safety continues until the crossing has been traversed. A person in the exercise of reasonable care who is unhindered and whose view is unobstructed cannot take a last look at some distance from the crossing, whether it be 20 feet or 2,000 feet away, and then shut his eyes and go blindly forward, relying implicitly on the presumption that the servants of the railroad company will not be negligent in the running of its trains or cars.'

Cole v. Met. Street Ry. Co., 121 Mo.App. 610, 97 S.W. 556. This case was followed in Grout v. Electric Ry. Co., 125 Mo.App. 559, 102 S.W. 1026, where the court said: 'He was justified in indulging in this presumption, but, as we have recently declared in a number of cases, this did not absolve him from the performance of the duty of attending to his own safety. He had no right to rely solely on a...