Burian v. Seattle Elec. Co.

• Decision Date: 14 December 1901
• Citation: 26 Wash. 606,67 P. 214
• Parties: BURIAN v. SEATTLE ELECTRIC CO.
• Court: Washington Supreme Court

67 P. 214

26 Wash. 606

BURIAN v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

December 14, 1901

Appeal from superior court, King county; Geo. Meade Emory, Judge.

Action for personal injuries by Gottlieb Burian against the Seattle Electric Company. Judgment for defendant, and plaintiff appeals. Reversed.

Edward Holton James and J. Henry Denning, for appellant.

Struve Allen, Hughes & McMicken, for respondent.

HADLEY J.

The respondent is the owner and operator of a system of street railways in the city of Seattle, and on the 11th day of November, 1900, was engaged in the operation of a line of cars along Madison street, in said city. The westerly end of Madison street is near the waters of Puget Sound, from which point said street proceeds in a northeasterly course, and ascends, for a distance of many blocks, the sloping side of a very high hill. The respondent's cars are moved up and down the slope of said hill along Madison street by means of an underground cable. Madison street is crossed at right angles by the following parallel streets, among others, viz Second avenue. Third avenue, and Fourth avenue. Those portions of Madison street included in its intersections with said streets at their several places of crossing are practically level, while those portions which lie between said intersections ascend the hill by a very steep grade. Of the streets crossing Madison street above named, Second avenue is the most westerly, and is nearest the westerly end of Madison street. Next easterly, and up the hill, from Second avenue, lies Third avenue, which corsses Madison street one block distant from the crossing of Second avenue and Madison street. Ascending the hill from Third avenue, Madison street proceeds until it intersects Fourth avenue, one block distant. On the day first above named appellant resided at Spring Place, in the city of Seattle which is located adjoining Madison street, some distance easterly from that portion of Madison street heretofore described. In the evening of that day appellant started with his family to go to Germania Hall, which is located on Second avenue, and to the north of Madison street. The party walked along Madison street to the westward, following the northerly side of said street until they reached Fourth avenue, when they crossed to the southerly side of Madison street, and proceeded along that side of the street down to Third avenue. They corssed over Third avenue, and appellant's wife and daughter and a young lady who accompanied them stood upon or very near the sidewalk at the southwesterly corner of the two streets. Appellant stated to cross over Madison street intending to proceed northerly across Madison street to Seneca street, and thence down Seneca street to Second avenue, and to Germania Hall. As he started across Madison street he proceeded in a diagonal direction with reference to the square formed by the intersection of the two streets. He went in a northeasterly direction until he was some 20 or 25 feet from the westerly line of Third avenue, and was also near the center of Madison street. At this point in Madison street are the double tracks of the Madison Street Cable Line. The northerly track is used by the cars going westerly toward the foot of Madison street and toward Puget Sound. The southerly track is used by those going easterly toward Lake Washington. Crossing the above tracks at said street crossing are also the double tracks of an electric line proceeding along Third avenue. A car on the Madison street line had just come from Lake Washington, and had stopped at the Third avenue crossing. Appellant, from the position above described, stood in the space between the two tracks of the Madison Street Line, and a little in front of and facing said car. He was therefore facing toward the northeast, and stood with his back to the Madison street hill, between Second and Third avenues. While standing there he observed that his family had not followed him, and he turned to go back to where they stood, as above described. He did not turn to the westerly, and look down the Madison street hill, but turned to the right, with his face to the east, and then to the south, and started across the southerly track of the Madison Street Line. While in the act of crossing this track, he was struck by a Madison street car, which had just come up the hill from the direction of Second avenue. He received serious and substantial injuries. Appellant was familiar with the surroundings of the locality and with the manner of operating the Madison street cars. At the trial witnesses testified that they did not hear a gong sounded from the car as it ascended the hill and as it approached and entered upon Third avenue, but, owing to their excited condition of mind at the time of the accident, they were unable to testify that the gong was not in fact sounded. One witness, however, did testify positively to the fact that no gong was sounded from the car at any time as it approached the crossing. At the close of appellant's testimony the respondent challenged the legal sufficiency of the evidence to entitle appellant to a verdict, and moved the court to find as a matter of law that the verdict should be returned in favor of respondent, and also to discharge the jury, and enter judgment accordingly. This motion was granted by the court, and judgment was entered that appellant is not entitled to recover in this action against respondent, and that respondent recover its costs. From said judgment this appeal was taken.

It is insisted by respondent that the car which ascended the Madison street hill, being propelled by a cable, could not with safety to its passengers, be released from the cable until the car had cleared the incline of the hill, and stood upon the level of the Third avenue crossing. The grade of the hill between Second and Third avenues is about 20 per cent., and it is urged that it would be hazardous if a gripman should release the car from the cable at any point on the incline, since it might not be possible by means of brakes to prevent the car from retreating down the hill. The car was apparently stopped as quickly as possible after it reached the level of the Third avenue crossing, but before it had safely landed upon the level its front end reached the point where appellant was crossing the track, and struck him. The speed of the car could not be checked, since it must follow the speed of the running cable at that point. Respondent concludes from the above-stated conditions that no negligence can be attached to it for not checking the speed, or for not sooner stopping the car. We are not at this time prepared to say as a matter of law that respondent's rights are such as may authorize it to maintain a system of operating cars that will prevent it from...