Cassels v. City of Seattle

Citation81 P.2d 275,195 Wash. 433
Decision Date15 July 1938
Docket Number27033.
PartiesCASSELS et al. v. CITY OF SEATTLE.
CourtUnited States State Supreme Court of Washington

Department 1.

Appeal from Superior Court, King County; James T. Lawler, Judge.

Action by Bertrand Beasley Cassels, guardian ad litem of Elizabeth B. Cassels, against the City of Seattle, a municipal corporation for personal injuries sustained when Elizabeth B Cassels fell to the floor of a street car. Elizabeth B Cassels died, and Bertrand Beasley Cassels and another executors of the estate of Elizabeth B. Cassels, deceased were substituted as plaintiffs. From the judgment, the defendant appeals.

Affirmed.

A. C. Van Soelen, John A. Logan, and E. A. Swift, Jr., all of Seattle, for appellant.

Robert F. Sandall, of Seattle, for respondents.

HOLCOMB Justice.

This is an appeal from a judgment entered upon a verdict of a jury for personal injuries sustained by falling in a street car.

This action was brought by Elizabeth B. Cassels through Bertrand Beasley Cassels, her guardian ad litem. Since Elizabeth B.

Cassels is now deceased, the executors of her estate were substituted as respondents. The instant case was consolidated with the case of Gay v. Seattle, King county superior court cause No. 296610, for trial, but the Gay case is not involved in this appeal.

In her complaint respondent alleged that on August 13, 1936, at approximately 4:30 P. M., she boarded a street car in Seattle at Third Avenue and Pine Streets intending to leave the street car at Madison Street to transfer to the east bound Madison cable car; that this street car proceeded in a southerly direction on Third Avenue; that midway between Spring and Madison streets the motorman operating the street car, in attempting to bring such street car to a stop, negligently and carelessly applied the brakes and caused the car to be so violently jerked that respondent was thrown from her feet to the floor of the car, thereby injuring her; that as the result of that fall respondent was permanently injured, having received a severe blow over her left temple, fractured her left wrist, and wrenched and bruised her body generally; that on September 3, 1936, respondent filed a claim for damages in the sum of $3500 with the ex officio city clerk of Seattle; that since filing the claim she has almost completely lost her mental faculties as a result of the accident; and therefore prayed for damages in excess of $10,000.

Appellant answered, denying the material allegations of the complaint, and by way of affirmative defense, alleged that respondent was guilty of contributory negligence in that she failed to exercise that degree of care which a reasonably careful and prudent person would have exercised under the same or similar circumstances. Respondent replied denying the affirmative defense in the answer.

A verdict was returned in favor of respondent upon which a motion was made for a judgment n. o. v. or for a new trial, which was denied. Judgment was entered in favor of respondent and this appeal followed.

It is contended that the trial court erred in overruling appellant's motion for a new trial on the ground of the insufficiency of the evidence to support the verdict.

Respondent was seventy-two years of age at the time of the injury, and since her vision was somewhat impaired and since at times she appeared to be somewhat mentally unbalanced, a certain Mrs. Olive M. Gay, a co-plaintiff in this case, was engaged to act as a companion for her. In the discharge of her duties Mrs. Gay accompanied her to the theatre and assisted her in shopping. On the day of the accident respondent, accompanied by Mrs. Gay, had been shopping at a Seattle department store and was en route home by street car. Respondent and her companion were sitting on the first seat facing south on the righthand side and there was a long seat parallel to the aisle between them and the front door.

The testimony shows that approximately midway between Spring and Madison streets, Mrs. Gay arose and thereafter respondent arose from her seat to get off at Third Avenue and Madison street, and respondent fell on the floor of the car between the second and third seats. The undisputed evidence shows respondent suffered a fractured left wrist, a 'colles fracture,' and a contusion of the left temple around which was quite a large swollen area.

Prior to the accident respondent showed signs of forgetfulness and appeared somewhat eccentric from time to time. Following the accident, however, respondent became very violent, mentally unbalanced to a very pronounced extent, and had to be confined in a sanitarium. The medical testimony is not in harmony in regard to the effect of the accident upon respondent's mental condition.

In regard to the nature of the jerk of the street car the testimony is in sharp conflict. Some of the...

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8 cases
  • Nopson v. City of Seattle
    • United States
    • Washington Supreme Court
    • June 16, 1949
    ... ... It is open to the carrier to show ... that the accident was not the result of negligence, and he ... is always entitled to have the verdict of the trier of fact ... on the question when he makes such a showing. * * *' ... In ... Cassels v. Seattle, 195 Wash. 433, 438, 81 P.2d 275, ... 277, we laid down the oftrepeated rule: ... 'To ... support a claim for damages occasioned by jerks and jolts on ... a street car there must be evidence that the facts and ... circumstances surrounding the ... ...
  • Southern Pacific Company v. Buntin
    • United States
    • Arizona Supreme Court
    • October 9, 1939
    ... ... train stopped, that it had reached that city, and after a ten ... minutes wait it was about to resume progress. Just before it ... started the ... Rep. 41; Dickinson v ... Bryant, 69 Okl. 297, 172 P. 432, L.R.A. 1918E 978; ... Cassels v. City of Seattle, 195 Wash. 433, ... 81 P.2d 275; Jordan v. City of Seattle, 30 ... Wash. 298, ... ...
  • Wiggins v. North Coast Transp. Co.
    • United States
    • Washington Supreme Court
    • January 29, 1940
    ... ... Black, judge ... J ... Speed Smith and Henry Elliott, Jr., both of Seattle (J. L ... Rucker, of Everett, of counsel), for appellant ... John C ... witnesses, and to resolve all conflicts in the evidence ... Humphreys v. City of Seattle, 152 Wash. 339, 277 P ... 834, 281 P. 994; Sauers v. Mutual Benefit, etc., ... Ass'n, 187 Wash. 262, 60 P.2d 103; Cassels v ... City of Seattle, 195 Wash. 433, 81 P.2d 275. The ... ordinary jolts and jerks of ... ...
  • Wilcoxen v. City of Seattle
    • United States
    • Washington Supreme Court
    • March 14, 1949
    ... ... and for injuries resulting from them, the carrier is not ... liable.' ... It is, ... however, actionable negligence to cause a conveyance to give ... a violent or extraordinary jolt, causing injury to a ... passenger. Cassels v. City of Seattle, 195 Wash ... 433, 81 P.2d 275. Whether a given jerk or jolt was ... 'violent' or 'extraordinary' or ... 'usual' is ordinarly a question of fact to be ... determined by the jury. Wiggins v. North Coast Transportation ... Co., supra ... ...
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