Bennett v. Seattle Elec. Co.

• Decision Date: 18 December 1909
• Citation: 56 Wash. 407,105 P. 825
• Parties: BENNETT et al. v. SEATTLE ELECTRIC CO.
• Court: Washington Supreme Court

105 P. 825

56 Wash. 407

BENNETT et al. v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

December 18, 1909

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Anna Sullivan Bennett and others against the Seattle Electric Company. From a judgment in favor of plaintiffs defendant appeals. Affirmed.

James B. Howe and A. J. Falknor, for appellant.

John E Humphries and George B. Cole, for respondents.

GOSE J.

This action, instituted by the widow and minor children of David Sullivan, deceased, to recover damages for his death, which it is alleged was caused by the negligence of the appellant, terminated in a verdict and judgment for the plaintiffs, from which the defendant prosecutes this appeal.

During the pendency of the case the widow remarried. The case has been before this court on two former appeals, where a full statement of the facts will be found. Sullivan v. Seattle Electric Company, 44 Wash. 53, 86 P. 786; Id., 51 Wash. 71, 97 P. 1109. In brief, the charge of negligence is that David Sullivan, in the nighttime, and when in a drunken and helpless physical condition, entered upon one of the street cars of the appellant, it being a common carrier of passengers, as a passenger, and paid his fare; that his condition was known to the appellant; that, when the car was on the trestlework and bridge along the shore of Lake Union, the night being dark and there being no sufficient lights and at a dangerous place, as the appellant well knew, it negligently allowed him to alight from the car upon the trestlework and bridge, there being no guards or rails at that place; and that he fell through the trestlework into the water of the lake, and was immediately drowned. On the first appeal we stated the rule to be 'that a carrier owes to the passenger a duty commensurate with his condition,' and that, after it receives a passenger who is helpless or incapacitated, it must exercise toward him that degree of care necessary to keep him from harm.' On the second appeal we thus defined the issues: '* * * The issues in this case are, first, was the deceased intoxicated; second, did the servants of the appellant have actual notice of his condition; third, was the place where the deceased was permitted to alight from the car a reasonably safe place to land a person in his condition; and, fourth, was the act of the appellant or its servants in suffering and permitting the deceased to leave the car at that particular time and place and in his then condition the natural and proximate cause of his death? If the jury should find all of these issues in favor of the respondents, they would be entitled to a verdict, and the mere fact that the deceased fell into the lake from the platform or trestle by reason of his intoxication--if he did so fall--would not of itself preclude a recovery, as the appellant was bound to anticipate such negligence on his part.' The evidence tends to show that the deceased was received as a passenger on one of the appellant's cars when in such a state of intoxication as to be incapable of taking care of himself; that he was permitted to alight, either upon the trestle along the shore of Lake Union, upon a dark night, where there were no guards or barriers, or at a point a few feet distant upon the platform of Hinckley station, where there were no guards or barriers where the car entered or left the platform; that the water at that point was about 26 feet deep, and about five days later his body was taken out of the lake at a point a few feet from the south entrance of the car line to the platform; that the car upon which he was riding was traveling toward the north, and that his death was caused by drowning. Numerous errors are assigned, but most of the questions sought to be raised were decided adversely to the appellant on the former appeals.

It is first urged that the respondents were not entitled to recover for the reasons (1) that it was not shown that the place where deceased got off the car was not a reasonably safe place for one in his condition to alight; (2) that he was guilty of contributory negligence; and (3) that it is impossible to determine from the evidence the actual cause of his death. These questions were raised, first, by a motion for a directed verdict; and, second, by a motion for a judgment non obstante. That these were questions of mixed law and fact was settled in the former appeals. There was as we have seen evidence tending to show that the place where the deceased got off was not a reasonably safe place for a drunken man to alight. We cannot usurp the functions of the jury, and say that the preponderance of the evidence was against their conclusion. Had the writer been a juror, he would have reached a conclusion different from that found by the jury on that question, but that does not authorize us to overrule their verdict. The jury is the tribunal designated by the Constitution to try such questions, and when their verdict is based upon competent testimony, and is free from passion and prejudice, the court will not overrule their determination upon a pure question of fact. The evidence is conclusive that the deceased came to his death by drowning. No bruises were found upon the body. It was taken out of the water within a few feet of the place at which at least two of the witnesses testified he alighted from the car, and within a few feet of the south side of the platform. There is no evidence that he was ever seen alive after the car left the platform. The law has taken human life upon less evidence of the corpus delicti. On the first appeal we said that the appellant owed the deceased a duty commensurate with his condition. The corollary of this rule must be that his duty to care for his own safety should be measured by his condition as to sobriety. Price v. St. Louis, etc., Ry. Co., 75 Ark. 479, 88 S.W. 575, 112 Am. St. Rep. 79. As we shall see, the jury were properly instructed upon the question of his negligence.

A witness for the respondent was permitted to premise his testimony with the statement that he was a county assessor at the time of the accident, which he later corrected by saying that he was then a deputy assessor. This is assigned as error, on the ground that evidence of the good reputation of a witness cannot be given until his reputation has been assailed. We think the objection is without merit. The question was the usual one in the introduction...