Coughlin v. Weeks

• Decision Date: 03 October 1913
• Citation: 135 P. 649,75 Wash. 568
• Parties: COUGHLIN et ux. v. WEEKS.
• Court: Washington Supreme Court

135 P. 649

75 Wash. 568

COUGHLIN et ux. v. WEEKS.

Supreme Court of Washington

October 3, 1913

Department 2. Appeal from Superior Court, Spokane County; Thomas Neill Judge.

Action by H. E. Coughlin and wife against Carols H. Weeks. Judgment for plaintiffs, and defendant appeals. Affirmed.

Crandell & Crandell, of Spokane, for appellant.

W. J Matthews, of Spokane, for respondents.

MAIN J.

The purpose of this action is to recover damages for personal injuries. On October 14, 1911, the plaintiffs were residing in the Villa Nova Apartments in the city of Spokane. This apartment house is located near the middle of the block on the north side of Riverside avenue, about midway between the intersecting streets of Cedar on the east and Walnut on the west. On Riverside avenue there were a double set of street car tracks. On the evening of the date mentioned, at about the hour of 8 o'clock p. m., the plaintiffs left their apartment expecting to board a street car at the southeast corner of Cedar street and Riverside avenue. When reaching the curb, and before attempting to cross, they looked to the west and also to the east, and observed coming from the east, about 260 feet distant along the north side of the street, an automobile. They then attempted to cross the street, proceeding in a southeasterly direction. They had gone about 60 feet, and had just stepped beyond the south rail of the south street car track, when they observed the automobile crossing to the south side of the street and approaching them. To avoid a collision, the plaintiffs stepped to the north. At the same instant the automobile was turned in the same direction. The plaintiffs then stepped to the south, as the automobile turned to the south. Again the plaintiffs stepped to the north, and at the same instant the automobile turned in that direction, and the accident causing the injuries complained of then occurred. It is apparent that both the driver of the automobile and the plaintiffs were attempting to avoid an accident. Riverside avenue within this blocks turns somewhat to the south, so that its intersection with Walnut street is somewhat further south than is the intersection with Cedar street. The ordinances of the city of Spokane provide that vehicles traveling upon the streets shall keep to the right, as near the right-hand curb as possible. For the machine to have kept to the right, as required by the ordinance, it should have continued down the north side of the street, where it was at the time the plaintiffs testify that they first observed it. At the time of the accident there was in the machine the defendant, his sister, and the chauffeur. The facts as above stated are in brief as contended for by the plaintiffs and as their evidence tends to support. The evidence on behalf of the defendant in many particulars directly conflicts with that of the plaintiffs. The defendant denied any negligence on his part, and claimed that the accident was due to the contributory negligence of the plaintiffs. Evidence in support of the allegation of contributory negligence was introduced on behalf of the defendant which, if true, would support the charge. This evidence, however, was denied by the plaintiffs. The cause was tried to the court and a jury. The trial was concluded in the afternoon of March 19, 1912. It being agreeable to counsel for both parties, the court directed the jury to return a sealed verdict and present the same to the presiding judge. At about 10 o'clock in the evening of this day the jury prepared their verdict, had it signed by the foreman sealed the same, and separated. On the following morning the jury reassembled in the court of the presiding judge and presented their verdict. After the verdict had been read by the clerk, counsel for the defendant requested that the jury be polled. Upon the poll, nine jurors answered in affirmance of the verdict, two in the negative, and one that it was only partially his verdict. Thereupon the court directed the jury to return to the jury room for further deliberation. After a brief time they again returned into open court and presented their verdict. The jury were again polled, ten jurors answering in affirmance of the verdict, and two in the negative. The verdict was the same as the one previously presented. The court directed the verdict to be entered. At the close of the plaintiffs' case in chief, the defendant moved for a directed verdict, claiming that the evidence did not establish negligence on the part of the defendant, and did show contributory negligence on the part of the plaintiffs. This motion was denied. At the close of the entire evidence, the defendant again moved the court to direct a verdict in his favor, which was denied. The verdict awarded to the plaintiff, H. E. Coughlin, the sum of $5, and to his wife, Lillian E. Coughlin, the sum of $4,000. Motion for new trial being made and overruled, judgment was entered upon the verdict. The defendant has appealed.

It is first claimed by the appellant that the court erred in declining to direct a verdict when moved so to do on the ground that the evidence did not establish negligence on the part of the...