Connell v. Seattle, R. & S. Ry. Co.

• Decision Date: 08 November 1907
• Citation: Connell v. Seattle, R. & S. Ry. Co., 92 P. 377, 47 Wash. 510 (Wash. 1907)
• Court: Washington Supreme Court
• Parties: CONNELL v. SEATTLE, R. & S. RY. CO.

92 P. 377

47 Wash. 510

CONNELL v. SEATTLE, R. & S. RY. CO.

Supreme Court of Washington

November 8, 1907

Appeal from Superior Court, King County; R. S. Steiner, Judge.

Action by Mary J. Connell against the Seattle, Renton & Southern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Sachs & Hale, for appellant.

Jackson Silbaugh, for respondent.

HADLEY C.J.

This is an action to recover damages for personal injuries received by the plaintiff in a collision on the defendant's railroad. The defendant owns and operates an electric railway between the city of Seattl and the town of Renton. The plaintiff was a passenger upon one of the defendant's cars, when it was met upon the same track by what was known as the 'line car.' This was a box-like car, used for carrying freight, and was not employed for passenger service. The passenger car, upon which the plaintiff was riding, was moving over the track, the grade of which was practically level. Two or three blocks in front of this car the track began a steep ascent, upon a grade of at least 11 per cent. and perhaps more. The line car was coming down this grade, when for some reason its operator failed to control it. The wheels slid, and the brakes failed to hold it or to check its speed. The car moved down the hill at a high rate of speed, checked somewhat after reaching the level, and plunged head-on into the passenger car, causing the plaintiff's injuries. The defendant denied negligence on its part, and, after a trial before a jury, a verdict was returned for plaintiff in the sum of $3,500, for which amount judgment was entered. The defendant has appealed.

It is assigned that the court erred in refusing to give the following instruction: 'With respect to the degree of care owed by the defendant to its passengers, you are instructed that the duty enjoined by the law upon defendant's conductors and motormen does not require the exercise of the highest degree of care possible to avoid an accident, but only the highest degree of care reasonably practicable under the circumstances and conditions existing at the time and place in question. By the term 'highest degree of care,' used in these instructions is meant that degree of care which would be exercised under like circumstances by careful, prudent, and experienced conductors and motormen generally.' The substance of the above instruction was given in the following modified form 'But the defendant is not an insurer of the safety of its passengers in any and at all events. If its motormen exercised the highest degree of care to avoid the accident which is reasonably practicable under the circumstances and conditions existing at the time and place in question, the demands of the law are satisfied. By the term 'highest degree of care,' used in these instructions, is meant that degree of care which would be exercised under like circumstances by very careful, prudent, and experienced conductors and motormen generally.' We think all essential points covered by the instruction as requested were effectively covered in the instruction as given in the modified form. The instruction as given is criticised because the court characterized the term 'highest degree of care' as that which would be exercised under like circumstances by 'very careful, prudent, and experienced conductors and motormen generally.' The objection is to the use of the word 'very' in the above connection. We see no error in the respect mentioned. The court's instruction as to the highest degree of care that should be exercised under given circumstances was in accord with the decision of this court in Foster v. Seattle Electric Company, 35 Wash. 177, 76 P. 995. It seems almost axiomatic that only very careful, prudent, and experienced operators of cars can exercise the highest degree of care.

It is assigned that it was error to give the following instruction 'If you should find that the motorman of either car failed to exercise the judgment, care, caution, and skill which was necessary under all the existing circumstances, and that they, or either of them, failed to exercise the care judgment, caution, and skill usually and customarily attendant in like conditions and circumstances, then the defendant has failed to overcome the imputation of negligence in operating said cars arising in case of such collision, and you should find for the plaintiff, and give her such damages as you find she has sustained, if all of the other elements of her cause of action have been proved to your satisfaction.' It is argued that the instruction without limitation erroneously placed upon appellant the imputation of negligence based upon the admission by appellant that a collision did in fact occur. It is conceded to be the rule, where two cars of the...