Fennel v. Yellow Cab Co.

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, J.
• Citation: Fennel v. Yellow Cab Co., 138 Wash. 198, 244 P. 253 (Wash. 1926)
• Decision Date: 25 March 1926
• Docket Number: 19708.
• Parties: FENNEL v. YELLOW CAB CO. et al.

244 P. 253

138 Wash. 198

FENNEL v. YELLOW CAB CO. et al.

No. 19708.

Supreme Court of Washington

March 25, 1926

Department 1.

Appeal from Superior Court, King County; Hall, Judge.

Action by Mae Reynolds Fennel against the Yellow Cab Company and others. From an order granting a new trial after judgment for defendants, certain defendants appeal. Reversed, with instructions.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for appellants.

Henry Clay Agnew and Earle C. Lassen, both of Seattle, for respondent.

HOLCOMB J.

The accident out of which this action grows occurred at about 5:30 p. m. on December 5, 1923, at the intersection of Twelfth Avenue South and Atlantic street, in Seattle. Twelfth Avenue South runs north to south, intersecting Atlantic street, running east to west. There is a double-track street car line along the middle of Twelfth Avenue So Respondent was on her way home from down town on a south-bound street car. She got off at the intersection of Twelfth Avenue South and Atlantic street, and was walking towards the northeast corner of the intersection when she was struck by the front end of a taxicab operated by an employee of appellant. This taxicab had been traveling south on Twelfth Avenue South, back of the street car from which respondent had alighted, and upon arriving at the intersection of these streets turned to go east on Atlantic street. Both Atlantic street and Twelfth Avenue South are paved, and section 125 of Ordinance 41695 of Seattle, pleaded by appellant, provided:

'On paved streets at intersections pedestrians shall not cross such streets diagonally.'

Respondent testified that the car she alighted from was a front entrance car, having no exit at the back end, and that when it arrived at the intersection of Atlantic and Twelfth it ran beyond the north margin of the street intersection, where cars usually stop to allow passengers to get off the front end at the street crossing walk. When it stopped as it did in the intersection, she went around to the rear of the street car and when it had passed a little beyond her, she proceeded towards the northeast corner, diagonally. Later she said she 'did not go very much diagonally.' Atlantic street according to the map and scale in the record, is 24 feet wide, and Twelfth Avenue South is 42 feet wide. If, then, she alighted where she said she did, and let the street car move up so that she could proceed across to the northeast corner of the street intersection to the sidewalk, she must have proceeded quite diagonally. She said that it was raining slightly, but that she did not raise her umbrella.

Upon the issues raised by the pleadings the court instructed as to the law of the road, and the duty of drivers of vehicles as to giving and sounding warnings, very correctly. Upon the requirement of the city ordinance regarding pedestrians walking diagonally across paved streets the following instruction was given:

'You are instructed, members of the jury, that the city ordinance in effect at the time this accident happened provided that on public streets at intersections pedestrians shall not cross said intersections diagonally; and if you find from the evidence in this case that the plaintiff at the time this accident occurred was crossing the intersection of Atlantic street and Twelfth Avenue South in a diagonal direction, then I instruct you that she was guilty of negligence; and if you further find that her action in crossing said intersection diagonally caused or contributed to causing her injury, then she cannot recover and your verdict must be for the defendant.'

The jury found for the appellant, and therefore must have found that respondent crossed the intersection diagonally as prohibited by ordinance, and that such manner of crossing caused or contributed to her injury. Upon motion for a new trial, based upon the grounds that the verdict was against law and the evidence, and upon errors of law...