Dimuria v. Seattle Transfer Co.

• Decision Date: 16 October 1908
• Citation: 50 Wash. 633,97 P. 657
• Parties: DIMURIA v. SEATTLE TRANSFER CO.
• Court: Washington Supreme Court

97 P. 657

50 Wash. 633

DIMURIA v. SEATTLE TRANSFER CO.

Supreme Court of Washington

October 16, 1908

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by Vincenzo Dimuria against the Seattle Transfer Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.

Kerr &amp McCord, for appellant.

Joseph M. Glasgow, for respondent.

CROW J.

Vincenzo Dimuria commenced this action against Seattle Transfer Company, a corporation, to recover damages for personal injuries. From a judgment in his favor, the defendant has appealed.

The respondent alleged that on November 13, 1906, at the hour of 6:50 a. m., he was walking on Jackson street near its intersection with Third avenue, in the city of Seattle crossing the same in front of the entrance to the driveway of the Union Depot; that the appellant was the owner of a vehicle and team of horses then being driven along Jackson street by one of its servants, who so negligently and recklessly managed the team as to run over the respondent and do him bodily injury. The appellant, with other affirmative defenses, pleaded that the injuries sustained by respondent were caused solely by his own carelessness and negligence. At the close of respondent's evidence, the appellant moved for a nonsuit, and now insists that the trial court erred in denying its motion. The rule of practice in this state is that by proceeding with its evidence the appellant waived its motion for a nonsuit. If, however, at the time the motion was interposed and denied, the proofs were insufficient to sustain a verdict for respondent, the appellant's waiver only went to the extent of allowing the respondent the benefit of any evidence thereafter introducd. Port Townsend v. Lewis, 34 Wash. 413, 75 P. 982; Elmendorf v. Golden, 37 Wash. 664, 80 P. 264. If, on consideration of such additional evidence, it appears that the defects in the respondent's case have not been cured the motion without any renewal thereof may on a proper assignment of error be sustained and a nonsuit granted on appeal. Matson v. Port Townsend, etc., R. R. Co., 9 Wash. 449, 37 P. 705.

In now passing upon appellant's contention that the nonsuit should have been granted and that the trial court erred in denying the same, we must consider all the evidence admitted during the trial. Appellant, in support of its motion insists that the respondent was guilty of contributory negligence to such an extent as to prevent a recovery by him. The evidence, without conflict, shows that, while the respondent was crossing the public street, he carried an umbrella over his head, which he held in such a position as to prevent him from seeing the approach of appellant's team; that he did not look around; that he failed to observe the approach of any teams, but proceeded on his way without giving any attention to his surroundings. On cross-examination he testified as follows: 'Q. You had an umbrella over your head, did you? A. Yes. Q. You did not look around at all when you made the crossing from Third avenue over to the entrance of the depot. You never looked around at all, did you? A. No, sir; I was not looking around. I had an umbrella. Q. And you walked right straight ahead to your home? A. Yes; walking straight home. Q. Was not thinking of carriages or horses,...