Boulton v. City of Seattle

• Decision Date: 21 January 1921
• Docket Number: 16079.
• Citation: Boulton v. City of Seattle, 195 P. 11, 114 Wash. 234 (Wash. 1921)
• Court: Washington Supreme Court
• Parties: BOULTON v. CITY OF SEATTLE.

195 P. 11

114 Wash. 234

BOULTON v. CITY OF SEATTLE.

No. 16079.

Supreme Court of Washington

January 21, 1921

Department 1.

Appeal from Superior Court, King County; John M. Ralston, Judge.

Suit by Henry G. Boulton against the City of Seattle, resulting in verdict for plaintiff. From order granting defendant new trial, plaintiff appeals, and from order denying its motion for judgment non obstante veredicto, and denying directed verdict and nonsuit, defendant cross-appeals. Affirmed.

Piles &amp Halverstadt and F. C. Reagan, all of Seattle, for appellant.

Walter F. Meier and Ewing D. Colvin, both of Seattle, for respondent.

HOLCOMB J.

Plaintiff sued to recover damages for injuries to his automobile truck resulting when it collided with one of defendant's street cars. The jury returned a verdict for plaintiff. Defendant thereupon moved for judgment notwithstanding the verdict and for a new trial. The court denied the motion for judgment notwithstanding the verdict and granted the motion for a new trial, upon the stated ground that, in his opinion, the jury 'took up matters outside the record.' Defendant, at the conclusion of plaintiff's case, moved for a nonsuit, and at the conclusion of all the evidence moved for a directed verdict; and, plaintiff having appealed from the order granting a new trial, defendant cross-appealed from the order denying the motion for judgment n. o. v. and denying the directed verdict and the nonsuit.

A summary of the facts out of which the action grew is as follows: On and for several days prior to April 22, 1919 appellant had been engaged in hauling dirt or gravel in his truck from a steam shovel at a point on Forty-Fifth Street Northeast in the city of Seattle, for use in the construction of a bridge; and on the day in question, at about 1 o'clock in the afternoon, he was driving his truck north on the east side of Eleventh Avenue Northeast for another load of material. His practice had been, upon getting a load to drive east on East Forty-Fifth street to Eleventh avenue thence south to the approach to the new bridge at Tenth Avenue Northeast. Returning in his empty truck for another load, he would go north on Eleventh avenue and west on East Forty-Fifth street to the gravel pit. In making these trips he passed, about every half hour, the street intersection where the accident occurred. He testified that he had been accustomed, as he came up Eleventh avenue, to look between buildings across lots toward East Forty-Fifth street, to see whether any street car or automobiles were coming; that just before the accident occurred he so looked and saw no car, he at that time being some distance down on Eleventh avenue; that upon coming into the street intersection he looked once more, this time west on East Forty-Fifth street, and saw a street car, as he says, about 125 or 130 feet away; that he was then about 30 feet from the point on the street railway tracks where his truck collided with the street car; that he assumed the car was coming at a normal and legal rate of speed, and that he had sufficient time to cross in front of it, and so continued to cross East Forty-Fifth street; that, when he was practically on the street car tracks and it was too late to stop, he saw the car approaching at an unusual rate of speed and almost upon him; that he 'stepped on the gas,' but the car struck the rear of his truck and turned it around 10 or 15 feet. He was then driving the truck at a speed of about 10 miles an hour. The legal rate of speed for the street car was 20 miles an hour. Appellant claims that it was traveling at a high or unusual rate of speed. Supporting this contention, appellant attempts to show the relative distances of the two vehicles from the point of collision, and, having given the speed of the truck as 10 miles an hour, points to the conclusion that the car must therefore have been traveling at a rate of speed in excess of that permitted by the city ordinance, and that such violation of the ordinance was the proximate cause of the accident. Upon appellant's assumption, the street car had about four times as great a distance to cover, in order to reach the point of collision, as did the truck, which was approaching at a speed of 10 miles an hour. This suggests that the street car was approaching at a speed of about 40 miles an hour. The street car had, however, come to a full stop at Tenth avenue, the first street west of Eleventh avenue; and, when the motorman started it again, he testified that he 'coasted' the distance from Tenth avenue to...