Clark v. City of Seattle

• Decision Date: 06 January 1927
• Docket Number: 20129.
• Citation: 141 Wash. 634,252 P. 100
• Parties: CLARK v. CITY OF SEATTLE.
• Court: Washington Supreme Court

252 P. 100

141 Wash. 634

CLARK v. CITY OF SEATTLE.

No. 20129.

Supreme Court of Washington

January 6, 1927

Department 2.

Appeal from Superior Court, King County; Stern, Judge.

Action by Lawrence Clark against the City of Seattle. Verdict for defendant, and from an order granting plaintiff's motion for a new trial, defendant appeals. Reversed and remanded with instructions.

Thomas J. L. Kennedy and Arthur S. Chramm, Jr., both of Seattle, for appellant.

BRIDGES, J.

The city of Seattle maintains and operates a double-track street railway between the main portion of the city and West Seattle. A part of this line is on Spokane avenue. At one place on that avenue, which is in the outskirts of the city the city has provided a place for persons to alight from and take the street cars. At this point the tracks are elevated above the ground level. There is what is called the north elevated platform, which serves the outgoing traffic, and the south platform, which serves the ingoing traffic. These platforms are opposite one another. The only approach is up a stairway which leads to the outgoing platform, and any one desiring to take an ingoing car must cross the tracks from the outgoing platform to the ingoing platform. The space between the two platforms is properly and securely planked. About midnight of a certain day the plaintiff ceased his work and came to the station in question for the purpose of taking a car into the city. When he arrived on the north platform he saw an ingoing street car standing at the south platform. The front of the car was slightly past the planked portion of the space between the rails. Another ingoing car was slowly approaching the station. The plaintiff, in order to get onto the south platform and from that point take the front car, that is, the one that was standing, went in front of it, and in so doing went beyond the planks between the tracks and onto the ties. He undertook to step from the guard rails onto the platform but instead stepped into the space immediately to the end of the south platform and fell to the ground, some distance below, and was injured. The verdict of the jury was for the defendant. The court granted plaintiff's motion for a new trial for the reason that he conceived he had given an erroneous instruction to the jury. The city appeals from the order granting the new trial. We have not had the benefit of any brief or oral argument on behalf of the respondent.

The instruction which the court conceived to be wrong was as follows:

'You are instructed that if you find from the evidence in this case that the defendant provided reasonably safe landing platforms for persons intending to board street cars at the point in question, and provided reasonably safe means of access to said landing platforms, and if you further find from the evidence that plaintiff chose a dangerous way of reaching said landing platform and was injured by reason thereof, then plaintiff cannot recover, and your verdict must be for the defendant.'

It is said that the court was of the opinion that the instruction which we have quoted was in violation of the rule announced by us in Stock v. Tacoma, 53 Wash. 226, 101 P. 830 Colquhon v. Hoquiam, 120 Wash. 391, 207 P. 664, and Clausing v. Kershaw, 129 Wash. 67, 224 P. 573.

We are of the opinion that the instruction given by the court properly stated the law upon the facts of this case. The cases above...