Budman v. Seattle Elec. Co.

• Decision Date: 20 December 1910
• Citation: 112 P. 356,61 Wash. 281
• Parties: BUDMAN v. SEATTLE ELECTRIC CO.
• Court: Washington Supreme Court

112 P. 356

61 Wash. 281

BUDMAN v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

December 20, 1910

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Michael Budman against the Seattle Electric Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with instructions.

Jay C Allen, for appellant.

James B. Howe and H. S. Elliott, for respondent.

DUNBAR J.

The Seattle Electric Company was operating its cars in Seattle on a line that is known as the 'Wallingford line.' Some gravel and sand had been thrown upon the track where this accident occurred for the purpose of repairing or raising the ties. The most of this gravel which had not been used had been removed. There was still a little left to be removed and the plaintiff was left by the foreman to remove it, when one of the cars traveling on that line struck him, causing the injury for which he sues to recover. The case was tried to a jury, and resulted in a verdict in favor of the plaintiff, upon which defendant moved for judgment notwithstanding the verdict, which motion was sustained. Judgment was rendered accordingly, and from such judgment this appeal followed.

The plaintiff was a foreigner, 59 years of age and a common laborer, and had been in the employ of the defendant company about a month. According to his testimony, he was working at the time on the track, and his work required him to be in a stooping position. While in such position, the car struck him without any notification of its approach. He testified that all the cars that had come down the track prior to the one that hurt him had rung a bell, thereby notifying him of their approach, but that this one did not; that it was a double track, and that there was another car that had just passed on the other track which he had noticed; that he did not hear the car approach which hurt him, and he had no notification in any way of its approach; that if he had been notified of the approach of the car, or had seen it, he would have run and escaped it. The motorman testified that he saw the plaintiff approaching the track with his shovel when he was about two car lengths from him; that he threw off the current to let the car drift until he could see whether the plaintiff was going to cross the track; that, when the plaintiff got within about three or four feet of the track, he stopped perfectly still, set his shovel down on the ground, with his right hand on the top of the handle of the shovel, and looked straight down at the ground; that he was ringing the going at the time for the purpose of attracting his attention, and he supposed that the plaintiff knew that the car was coming; that he let the car coast right on up, and did not know anything more about it until he heard something which sounded as though something fell against the car, 'like it was a piece of wood.' Then, he says, he made an application of the air and stopped the car, stepped over to the side of the window, and looked out, and saw the man lying down there in the street. So that it will be seen that as to whether notification was given by the sounding of the gong or ringing of the bell was a question upon which there was direct conflict of testimony. There was another witness who testified that he heard the motorman ringing the bell. The conductor on the train at the time, while not directly testifying that no gong was rung, impliedly testified so by stating that, when he heard this collision, he touched the bell for the purpose of notifying the motorman to stop the car, as he did not know that there was any effort to stop it.

The record, excluding that portion which treats of the character of the injury, is meager, and we have examined it with care and have been forced to the conclusion that on the question of the negligence of the motorman in running the car on to the appellant the testimony is so conflicting that it should have been submitted to a jury. If respondent was negligent, it was because it failed to perform a legal duty in this case--a duty owing to the appellant by reason of their mutual relations, or by the doing of something which it should not have done. The respondent cites many cases to sustain its contention that the testimony shows negligence on the part of the appellant as a matter of law, among them Skinner v. Tacoma Ry. & Power Co., 46 Wash. 122, 89 P. 488, Dimuria v. Seattle Transfer Co., 50 Wash. 633, 97 P. 657, 22 L. R. A. (N. S.) 471, Helliesen v. Seattle Electric Co., 56 Wash. 278, 105 P. 458, and Mey v. Seattle Electric Co., 47 Wash. 497, 92 P. 283, all cases, of course, which were decided by this court. The case of Skinner v. Tacoma R. & P. Co. decided that a person was guilty of contributory negligence as a matter of law when, on a dark night, he stepped in front of an approaching street car, 10 feet away, with its headlight burning, and running near the speed limit, where he knew that the cars were accustomed to meet, and where the approaching car was in open view for a considerable distance. In that case it will be observed that the controversy was between a pedestrian and the street car company; while, in the case at bar, it is between the street car company and an employé, who was ordered into the position which he occupied by the company, and who was in that particular place in the performance of his duty--an entirely different proposition from the case of a pedestrian who, as a matter of course, must exercise his own judgment in relation to dangers which may beset him when crossing the car lines. In Mey v. Seattle Electric Co. we held that a pedestrian was guilty of contributory negligence precluding a recovery where he walked on a street car track, in a city where cars were constantly passing, at a point where the sidewalk and a part of the street were fenced off or taken up with building operations, where there was room every few feet for him to get off the track to allow a car to pass, and he failed to keep on the lookout for cars coming up behind him. In that case it was said: 'It also appears from uncontradicted testimony that there was a passage a portion of the way between the fencing which inclosed the sidewalk and the car line and where the débris was piled that was wide enough to allow pedestrians to pursue their way and the street cars to pass without injuring them, and that a portion of the way there was not room; and that also at the point where the plaintiff was injured there was room between a carriage or hotel bus and the railroad track for a man to pass without being injured. This being true, it seems plain that it was the duty of the appellant while traveling in close proximity to this track in a place where he testifies he knew that cars were passing at short intervals to have exercised the ordinary caution of noticing, when he passed those points where there was not room for both man and car, whether there was any car which was liable to injure him.' We hardly see how the doctrine announced in this case, where the cars had no notification of the presence of a pedestrian on their track, where there was no duty owing to the pedestrian excepting to travel within the time prescribed by the law, to keep the ordinary lookout and to protect the...