Chisholm v. Seattle Elec. Co.

• Decision Date: 08 January 1902
• Citation: 67 P. 601,27 Wash. 237
• Court: Washington Supreme Court
• Parties: CHISHOLM v. SEATTLE ELECTRIC CO.

67 P. 601

27 Wash. 237

CHISHOLM v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

January 8, 1902

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

Action by W. A. Chisholm against the Seattle Electric Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Root, Palmer & Brown and G. Ward Kemp, for appellant.

Struve Allen, Hughes & McMicken, for respondent.

DUNBAR J.

Action for damages for injuries alleged to have been received by appellant through being run over by a street car owned and operated by respondent. At the close of plaintiff's testimony the defendant challenged the sufficiency of the same and moved for judgment in its favor. The motion was sustained by the court, and this appeal involves the right of the court to sustain the motion, together with the alleged error of the court in striking out certain testimony.

The testimony, in brief, shows that defendant has two car tracks on Second avenue in the city of Seattle, where the accident occurred the cars running north on the east track and south on the west track. The tracks are about six feet apart, running parallel with each other. The avenue is paved with brick where the accident occurred, and for several blocks each way the street crossing being no different from the other portions of the avenue, and it being the custom of the people to cross anywhere and everywhere in that vicinity. The testimony also shows that Second avenue is one of the principal business streets in the city, and, at the point where the accident occurred, is ordinarily crowded with pedestrians and vehicles. The testimony of appellant is to the effect that when he left the sidewalk to cross the street he looked for cars, and saw two going south,--one nearly opposite to him, and one about a block away,--but did not see any moving north. He then proceeded across the street at an ordinary gait, when he was struck by a car going north, and run over by said car, which crushed his leg, necessitating amputation. We cannot understand upon what theory the court took the case from the jury, unless upon the theory that it is negligence as a matter of law for a pedestrian to fail to look and listen when he crosses a street car track. But this court has uniformly held that the rule which in that respect applies to steam railroads does not apply to street cars. The rule was again affirmed in a case recently decided by this court, viz., Burian v. Seattle Electric Co. (filed Dec. 14, 1901) 67 P. 214; and on the law announced in that case the judgment in this case would have to be reversed and the question of negligence under the circumstances submitted to the jury. We have often announced the rule that, where circumstances are shown from which different conclusions could be reached by reasonable men, the question of negligence is always one for the jury, and that the judge usurps the functions of the jury and commits error when he substitutes his judgment for the judgment of the jury. This subject was again reviewed at length by this court in Mischke v. City of Seattle (decided Dec. 16, 1901 not yet officially reported) 67 P. 357.

Respondent relies upon the case of Helber v Railway Co., 22 Wash. 319, 61 P. 40; but it seems to us the cases are so entirely distinct in their circumstances that they may be said to bear no relation to each other. It must be remembered that in this case the plaintiff's testimony shows negligence on the part of the defendant. It...