Engelker v. Seattle Elec. Co.

• Decision Date: 06 August 1908
• Citation: 96 P. 1039,50 Wash. 196
• Parties: ENGELKER v. SEATTLE ELECTRIC CO. SCHMIDT et al. v. SAME.
• Court: Washington Supreme Court

96 P. 1039

50 Wash. 196

ENGELKER v. SEATTLE ELECTRIC CO.

SCHMIDT et al. v. SAME.

Supreme Court of Washington

August 6, 1908

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Actions by Eberhard Engelker and by Otto Schmidt and another copartners, against the Seattle Electric Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

James B. Howe and H. S. Elliott, for appellant.

Brightman & Tennant, for respondents.

HADLEY C.J.

Two actions involved in this appeal were tried together. One was to recover damages for personal injuries to the driver of a team, and the other to recover for injuries to the team wagon, and harness; the latter being owned by the driver and another, one Schmidt, as partners doing business under the name of 'Star Bakery.' The injuries resulted from a collision between one of appellant's street cars and the team and wagon driven by the plaintiff Engelker. It was alleged that the collision was due to the negligence of the defendant in the operation of its car. The defendant denied negligence on its part, and alleged contributory negligence on the part of the driver of the team. There was evidence to the effect that practically the entire east side of the street, from the sidewalk to the car track, was obstructed for some distance by reason of street repairs, so that teams could not be driven on that side of the street; that when teams came to this obstructed part of the street, they were compelled to drive onto the street railway track, and, after passing the obstructions, they were turned back to the unobstructed driveway; that in this manner this team was being driven around the obstructions; and that just as the driver had turned his horses for the purpose of driving off the track, the wagon was struck from the rear by the car. A verdict was returned against the defendant in each action and it has appealed.

A number of errors are assigned upon the refusal of the court to give certain instructions as requested. To set out all of these requests and the instructions actually given bearing upon the same matters would require more space than we think necessary. It is sufficient to say that we believe all proper points included in the requests for instructions were amply and fairly covered by those given. There was therefore no prejudice to the defendant in this particular.

It is assigned that the court erred in giving the following instruction: 'It is admitted, gentlemen, that there is an ordinance of the city of Seattle which limits the rate of speed of street cars in the business or settled residential district to 12 miles an hour. I instruct you that if you find from the evidence that this accident or collision occurred in the business or settled residential district of the city of Seattle, and that at the time of the accident the street car was going at a greater rate than 12 miles per hour, then that would constitute negligence upon the part of the defendant.' It is argued that the above instruction both declares that it was negligence per se to drive the car at a greater speed than 12 miles per hour, and also that the failure...