Daugherty v. Metropolitan Motor Car Co.

• Citation: 85 Wash. 105,147 P. 655
• Decision Date: 14 April 1915
• Docket Number: 11928.
• Court: Washington Supreme Court
• Parties: DAUGHERTY et al. v. METROPOLITAN MOTOR CAR CO. et al.

147 P. 655

85 Wash. 105

DAUGHERTY et al. v. METROPOLITAN MOTOR CAR CO. et al.

No. 11928.

Supreme Court of Washington

April 14, 1915

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by M. A. Daugherty and Frank Daugherty, by M. A. Daugherty his guardian, against the Metropolitan Motor Car Company and another. From judgment for plaintiffs, defendants appeal. Reversed and remanded, with directions to dismiss.

Douglas Lane & Douglas, of Seattle, for appellants.

Moore &amp Sweeney, of Seattle, for respondents.

CROW, J.

Action by M. A. Daugherty and Frank Daugherty, by M. A. Daugherty his guardian, against the Metropolitan Motor Car Company, a corporation, and Bruce A. Griggs, to recover damages for personal injuries sustained by Frank Daugherty. From a judgment in plaintiffs' favor, the defendants have appealed.

The cause, which was tried to the court sitting without a jury is before us for trial de novo, and we find it necessary to consider only appellants' contention that the trial judge erred in entering judgment in respondents' favor. The preponderance of the evidence shows that the respondent Frank Daugherty, who sues by his guardian, was on April 29, 1913, about 14 years of age; that for some years prior thereto he had been engaged in selling newspapers on the streets of Seattle; that for one year he had a news stand at the southwest corner of Marion street and Second avenue; that Marion street runs east and west, while Second avenue runs north and south; that on April 29, 1913, the appellant Bruce A. Griggs, in charge of an automobile owned owned by the appellant Metropolitan Motor Car Company, was driving south on the west side of Second avenue, traveling 6 to 8 miles per hour; that after he had crossed the intersection of Marion street and Second avenue and was some little distance south of the crossing the respondent Frank Daugherty suddenly darted from behind his news stand, ran diagonally across Second avenue toward the southeast, collided with appellant's automobile, and was injured. The evidence shows that one George W. Engler, who was distributing afternoon papers to newsboys and news stands, was driving a news cart north on the east side of Second avenue; that he intended to deliver some papers to Frank Daugherty, and also present him with a ball which he had earned as a premium; that as he came up the street he blew a whistle to attract the attention of Daugherty, who immediately ran across the street in a diagonal direction to meet him, and collided with appellant's automobile; that the appellant Griggs, not seeing him until he was almost against the machine, turned the automobile to the left and stopped it, but was unable to avoid the accident, and that the machine did not travel more than its length after its impact with respondent.

Respondents contend that the appellant Griggs was negligent in driving the automobile carelessly and at a rate of speed in excess of that allowed by the city ordinances. One witness testified that, in his opinion, appellant was driving about 25 miles per hour, but other witnesses fixed his rate of speed approximately at 6 to 10 miles per hour. Had the cause been tried by a jury, and had the jury found appellant was driving at an unlawful rate of speed, the testimony of the single...