Christensen v. Union Trunk Line

• Decision Date: 09 March 1893
• Parties: CHRISTENSEN v. UNION TRUNK LINE.
• Court: Washington Supreme Court

32 P. 1018

6 Wash. 75

CHRISTENSEN v. UNION TRUNK LINE.

Supreme Court of Washington

March 9, 1893

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

Action by Mike Christensen against the Union Trunk Line, a corporation, for the killing of plaintiff's horse by a collision with one of defendant's street cars. From a judgment in plaintiff's favor, defendant appeals. Reversed.

Smith &amp Littell and Hawley & Prouty, for appellant.

Trusten P. Dyer, for respondent.

ANDERS J.

On October 27, 1891, the appellant was the owner of an electric street-car line, and was operating the same on South Fourteenth street, in the city of Seattle. Upon this street which runs north and south, there is an elevation known as "Beacon Hill," from the top of which the railway track descended towards the north on a grade of about 10 percent., according to the evidence. From the crest of the hill northward, that part of the street that was usually traveled was on the east side of the street-car track. Between Canal and Lane streets, however, or in that vicinity, there had been a washout on the east side of the track, and, while the city was repairing the damage, it had constructed a crossing over the railroad track to the west side of the track, and a plank road leading north down the track a distance of about 120 feet, and then crossing back to the east side of the track. The first, or upper, crossing was about 700 feet from the brow of the hill. At the lower end of this temporary roadway, on the west side of the railway track, and close to the lower crossing, there was an excavation on that side of the street some four or five feet deep, so that teams could not be driven further south without crossing back to the east side of the railroad. About 9 o'clock in the forenoon of said October 27th the respondent, who was a teamster, and engaged in hauling cord wood from Beacon hill, passed down on the east side of the street with a team of horses and a wagon loaded with wood while one of appellant's cars was also going down the hill in the same direction, (north,) crossed over to the west side of the track, and thence continued down the temporary roadway to the lower crossing, when the hub of the hind wheel of his wagon was struck by the passing car. As the car passed on, the horse nearest thereto sprang forward with such force that he detached himself from the wagon by breaking the whiffle tree and harness. The other horse was thrown down the embankment, and the loaded wagon fell upon him, and so injured him that he soon after died.

The wagon was somewhat damaged, but whether by the collision or the fall is not certain, though the probabilities are that it was by the latter. The respondent brought this action to recover damages thus sustained, and which he alleged were caused by the negligence of the appellant in thus running its car against his wagon. The appellant, by its answer, denied that it was in any manner negligent or careless in the management of its car, and alleged that whatever damage the respondent sustained was caused by his own carelessness and negligence. There was a verdict for the plaintiff, and defendant filed a motion for a new trial. The motion was denied by the court, and judgment was entered upon the verdict, to reverse which the defendant has brought the cause to this court.

It is contended on behalf of the appellant that the judgment must be reversed, for the reason that the evidence shows that the injury complained of was not the result of negligence on the part of the motor man in charge of the car, but was caused solely by the want of ordinary prudence and care on the part of respondent. If it be true that the accident would not have occurred but for respondent's own negligence, he has no cause of complaint against appellant, even although the latter may have also been negligent. The fact-if it were a fact-that appellant was running its car at an unusually high rate of speed at the time of the accident is no excuse for the want of a reasonable measure of care and prudence on the part of the respondent to avoid injury. Railroad Co. v Houston, 95 U.S. 697. The testimony is too voluminous to be stated fully, but a careful examination of it leads us irresistibly to the conclusion that the judgment cannot be sustained. The respondent's own testimony shows that he had for some time been engaged in hauling wood down South Fourteenth street from Beacon hill, and was not only familiar with the character and condition of the street, and the temporary roadway on the west side of the railroad track, but also with the running of the cars at that particular point. He says he had been over the road a great many times, and knew there was danger in going on the temporary roadway if the cars were coming up. He further says that while coming down the hill he met a car going up, and that he knew at that time that the car coming down and the car going up the hill usually met at the top of the hill; and yet he states that he did not look for the car until he got to the upper crossing, and did not see it until he was crossing over the track, and did not hear the bell ring until he got into the narrow space on the west side of the track. He also says that the car was then coming down at the rate, as he afterwards "figured out," of from 16 to 20 miles an hour. He proceeded down the temporary passage way to the lower crossing, and undertook to cross back to the east side of the track, in front of the approaching car, thinking he could do so "all right," but, finding he had not time, he "swung his horses to the west." This movement of his team brought the back end of the wagon nearest the railway, and the dashboard of the car, in passing, struck the hub of the hind wheel, as before stated. The respondent testified, further, that the car was so near him when he turned his horses that it almost instantly came in contact with his wagon. The testimony of other witnesses also shows that the respondent attempted to cross the track ahead of the car, but apparently changed his mind, and "pulled" his horses back and away from the railroad. There is no doubt, therefore, as to what the respondent did at and immediately prior to the accident; and we think that it was his own want of that reasonable care and watchfulness which the occasion demanded that brought about the injury of which he complains. In the first place, it was negligence on the part of respondent to cross from the east side of the track to the narrow passage on the west without looking for the approach of the car which he knew was about to pass down the hill, if in fact, as he claims, it was a dangerous place. And it was still more negligent for him to undertake to cross back when the car was so near him. His excuse for so doing is that the way was too narrow for the car to pass his wagon, and that it was therefore the duty of the person in charge either to stop the car, or go at such rate of speed as would have permitted him to pass over the track to a place of safety....