Brown v. Seattle City Ry. Co.

• Decision Date: 13 February 1897
• Parties: BROWN ET UX. v. SEATTLE CITY RY. CO. ET AL.
• Court: Washington Supreme Court

47 P. 890

16 Wash. 465

BROWN ET UX. v. SEATTLE CITY RY. CO. ET AL.

Supreme Court of Washington

February 13, 1897

Appeal from superior court, King county; R. Osborn, Judge.

Action by W. P. Brown and Celestia M Brown, his wife, against the Seattle City Railway Company and W. A. Underwood, its receiver, to recover for personal injuries sustained by the female plaintiff. From a judgment for plaintiffs, defendants appeal. Affirmed.

Andrew F. Burleigh and Thos. A. Gamble, for appellants.

J. T Ronald, for respondents.

REAVIS J.

The appellant company is the owner of a cable railway in Seattle. The eastern terminus of the road is situated on the shore of Lake Washington, at the foot of Yesler Way, and its western terminus is also on Yesler Way, at the junction of that street with Occidental avenue. At the western terminus of the road is a turntable on which the trains of the railway are run and turned around preparatory to starting on their trip eastward to Lake Washington. On the 22d of September, 1893 between 5 and 6 o'clock in the afternoon, a train of the appellant company, consisting of a dummy and a trailer car arrived at the turntable at the western terminus of the road, and was turned around, and coupled together in the usual manner. The train had not yet started on its trip to the lake, when the respondent Mrs. Brown entered the car, where there were three or four passengers already seated. She took her seat on the south side of the car, near the front door. Just as she was seated, her husband, one of the respondents, followed her, and called out to her, asking if she had "got the medicine for the old lady." Mrs. Brown replied that she had forgotten it, and, getting up, went hastily out of the car to the front platform, and stepped off the car, and, while stepping off, was thrown down, and sustained severe injuries.

Before proceeding to discuss the errors assigned by appellants, we desire to notice the objection made to the answer by the respondents. The complaint of respondents as plaintiffs in the superior court, after alleging negligence of the appellant (defendant below), continues and negatives contributory negligence on the part of respondents by stating in the fifth paragraph of the complaint as follows: "Whereby the said plaintiff Celestia M. Brown, without negligence or fault on her part, but wholly owing to said reckless, careless, and sudden jerking and starting of said car by defendant's servants and employés as aforesaid, was violently and with great force thrown from the platform step of said car to the ground." The defendant company, in its answer, after denying the material allegations of the complaint, endeavored to set up contributory negligence on the part of the plaintiff injured, in the following language: "For a further separate affirmative defense to the cause of action in the complaint set out, defendants aver: (1) That whatever injuries were received by plaintiff Celestia M. Brown or by her husband, W. P. Brown, or either or both of them, in the manner and form as set out in the complaint, or otherwise howsoever, were not so received or sustained through any fault or negligence of these defendants, or either of them, their officers, agents, or servants, but such injuries were caused by the carelessness, fault, and want of care on the part of said plaintiffs, and each of them, and particularly on the part of said plaintiff Celestia M. Brown." Plaintiffs did not move against the answer to have it made more specific, nor demur thereto because it was insufficient, but filed a reply denying all the allegations of contributory negligence set up in the answer, but on trial objected to any evidence of contributory negligence on the ground that the affirmative defense in the answer did not state facts sufficient to constitute a defense. The court overruled the objection to this testimony, and it was admitted. We think the action of the lower court was correct in its ruling on this objection. However imperfectly the affirmative defense stated the plea of contributory negligence against plaintiffs, there was a sufficient statement, when denied by the plaintiffs in their reply, to make the plea good, especially in view of the fact that plaintiffs had chosen in their complaint to affirmatively negative contributory negligence on the part of the plaintiff injured.

The errors complained of by appellants here may be reduced to two: First, that the motion of appellants for a nonsuit upon the testimony should have been granted by the superior court on the ground that the evidence did not sustain the verdict and, second, that the superior court should have granted a new trial because an inspection of the whole evidence will conclusively show that the verdict of the jury was against the weight of evidence. The other point argued by appellants is that errors were committed in the instructions given to the jury. The appellants maintain that it was not shown satisfactorily that the respondent notified the conductor of her intention to alight from the car before attempting to do so. Upon this point the testimony of Mrs. Brown is as follows: "I got on the car right there at the turntable, where they stop, and I went in, and just got seated, and Mr. Brown came to me, and he says, 'Have you got that medicine for the old lady?' And I said: 'No. I will get up-I will get up and go out before the car starts.' And with that-the conductor was standing at the end-I threw my hand up at him like that [illustrating], and I raised up quickly, and stepped out of the door. I went to the platform, and stepped to the last step, and was about to step off, when the car started up with a jerk, and I was holding onto the rail with this hand [illustrating]. When the car started up that way it threw me clear around. I went clear around like that [illustrating], and my dress caught on something. Anyhow it tore my hold off of the bar, and I don't know how far I went, or anything like that, when the wheel went over my left foot, just above the ankle." And again, Mrs. Brown said on cross-examination: "Q. You say you looked towards the conductor? A. I did. Q. Or did you simply throw your hand up? A. I threw my hand at him like that [showing]. Q. What did you say the conductor was doing? A. He was leaning back, and he appeared to be looking through the car. Q. He was looking through the car at that moment? A. Yes, sir. Q. When you threw your hand up? A. When I threw my hand at him he first looked at me, and he took his hat off, and then he reached for the bell. I didn't notice him any other way. But I just threw my hand out, and I looked at him. Then I started off." And again: "Q. Was the car in motion when you got up? A. No, sir; the car was standing still. Q. When did the car start? A. The car started just as I was about to step off. Q. Step off where,-from the platform or the step? A. Off of the step. Q. How did the car start? A. It started sudden, like that." There were other witnesses who corroborated Mrs. Brown in her statement that the car was standing still when she arose to go out, and that simultaneously with her act of stepping on the ground the car started, throwing her backwards, and under the same. Mrs. Brown's statement that she put up her hand to the conductor when she arose in the car before starting to get off is contradicted by the evidence of several witnesses, who state that they did not see her make the signal to the conductor, and by the conductor himself; but we cannot determine, from our inspection of the whole record, that Mrs. Brown is necessarily a discredited witness. It is true, her interests were involved in...