Bradley v. City of Seattle

• Decision Date: 30 December 1930
• Docket Number: 22625.
• Citation: 160 Wash. 100,294 P. 554
• Parties: BRADLEY et ux. v. CITY OF SEATTLE.
• Court: Washington Supreme Court

294 P. 554

160 Wash. 100

BRADLEY et ux. v. CITY OF SEATTLE.

No. 22625.

Supreme Court of Washington

December 30, 1930

Department 1.

Appeal from Superior Court, King County; Wm. J. Steinert, Judge.

Action by Norris C. Bradley and wife, against the City of Seattle. From an adverse judgment, defendant appeals.

Affirmed.

A. C Van Soelen, E. I. Jones, and Douglas D. Mote, all of Seattle for appellant.

Padden & Moriarty, of Seattle, for respondents.

HOLCOMB, J.

Appellant owns and operates a municipal street railway. On June 13 1929, Louise Bradley and her husband were passengers on one of the streets car lines operated by appellant known as the Lake Burien line. The car in which they were riding collided head-on with another car operated by appellant on the same track. Mrs. Bradley, who will henceforth be referred to as if the only respondent, and her husband, had boarded the car some time before the accident, and she was seated on the left side in the corner next to the motorman, in the seat which ran paralled with the side of the car. After leaving Austin street, going toward the city, the car line is a single track for some distance, and winds down the side of a hill at a considerable grade. When it reaches Michigan street there is a switch wherein inbound and outbound cars pass. At the time in question, the car on which she was riding was approaching the switch from the south and another car was approaching it from the north. When coming down the hill and about 200 feet from the south end of the switch, the street car, because of caterpillars on the track, started to skid, got out of control, passed the switch, and hit the other car at the north end of the switch. When respondent and her husband saw a collision was inevitable, they, including the trainman on the front of the car, attempted to get away from the front toward the rear so as to avoid flying debris that might be caused by the collision. Just as respondent started to arise she was thrown to the floor by the force of the impact and seriously injured. The injuries she alleged and introduced proof to support, although there was considerable conflict in the evidence as to the reality of her injuries and the permanence thereof, consisted of being rendered unconscious, suffering concussion of the brain, hemorrhages of the nose, fracture of the coccyx bone, and wrenching of the upper vertebrae of the spine, wrenching of the ligaments of the spine, a sprain of her left shoulder, a bleeding condition of the rectum, excessive menstruation, nervous shock, and neurasthenia which may be permanent.

Appellant denied the allegations of negligence and liability, and affirmatively alleged that the injury, if any, was due to an act of God and also to the contributory negligence of respondent. The affirmative matter alleged in the answer was controverted by reply. The cause was tried before a jury, which rendered a verdict in the sum of $8,450 in favor of respondent.

Appellant unsuccessfully moved for judgment n. o. v., or, in the alternative, for a new trial on all the statutory grounds. These motions being denied, this appeal resulted.

The plea of contributory negligence is not urged here.

The trial judge, by an instruction to the jury, withdrew from their consideration the defense of the act of God, or vis major. Appellant requested an instruction on that defense which reads: 'You are instructed that the defendant city has set up as an affirmative defense that the collision of its street cars, at the time and place of the accident, was caused by vis major and by forces of nature beyond the control of the defendant and which could not have been anticipated or avoided by it, and that same was an unavoidable accident and without any negligence on the part of the defendant. You are further instructed that any accident due directly and exclusively to neutral cause without human intervention, which by no human foresight, pain or care, reasonably to have been expected, could have been prevented, is an accident caused by vis major and that defendant is not liable for such an accident.'

The evidence as to the presence of caterpillars upon the track although to some extent conflicting, is that they had been there for four or five days. The motorman, who had charge of the car on which respondent was a passenger, knew the day before and a few days before that, that the caterpillars were accumulating on the tracks. There had been more the day before than there usually had been. He had been up and down this street railway line five or six times the day before, and had noticed then a considerable number of caterpillars on the rails. He noticed for four or five days before that in coming down the hill it was more difficult to stop or control his car on account of the caterpillars, and on the day before he noticed that they created a slippery condition on the rails. He had actually slid the day before when attempting to make a stop. On the outbound trip, on the day in question, over this track, forty-five minutes before the accident, he saw the caterpillars in great quantities and thicker than he had ever seen them on the track before. He knew that they would cause the street car to skid. He knew that when they were present in such great quantities they were dangerous for the operation of cars on the track. When he reached the end of the outbound trip, on the morning in question, before starting back down the hill, he called the dispatcher and told him of the condition. The dispatcher replied that he had heard of the condition and that he had a man on the road up there. The motorman then started on the return trip, knowing that the caterpillars were on the track and knowing the dangerous condition. When he came down the hill he could see the caterpillars on the track in large quantities forty or fifty feet ahead, and piled up on the track. He said that when he saw that condition he was moving at the rate of three or four miles an hour, trying to avoid sliding. Respondent's witnesses testified that the car was going at a high rate of speed before hitting the caterpillars. The motorman said that at the rate of speed he testified he was going, he could stop his car in ten feet. He did not stop, but kept on going, and, upon hitting the caterpillars, the car started to skid and skidded two hundred feet to the point of collision. The car could have been equipped with brush such as is used to clear off snow from the tracks in the winter time, but was not so equipped until after this accident had happened. After that they went over the...