Fluhart v. Seattle Elec. Co.

• Decision Date: 13 October 1911
• Citation: 65 Wash. 291,118 P. 51
• Parties: FLUHART v. SEATTLE ELECTRIC CO.
• Court: Washington Supreme Court

118 P. 51

65 Wash. 291

FLUHART v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

October 13, 1911

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by W. H. Fluhart against the Seattle Electric Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded, with directions to dismiss.

James B. Howe and A. J. Falknor, for appellant.

Douglas Lane & Douglas, for respondent.

CROW J.

Action by W. H. Fluhart against the Seattle Electric Company, a corporation, for damages resulting from personal injuries. From a judgment in plaintiff's favor, the defendant has appealed.

Numerous assignments of error have been presented, but we will only discuss appellant's contention that the trial court erred in denying its motions for a nonsuit, a directed verdict, and judgment non obstante veredicto.

Galer street, in the city of Seattle, running east and west, is intersected by Queen Anne avenue and parallel cross streets known as First Avenue West, Second Avenue West, Third Avenue West, etc. Appellant operates a double-track electric street railway on Galer street; east-bound cars running on the southerly, and west-bound cars on the northerly, track. Respondent resided in a large apartment house, known as Queen Anne Court, located on the south side of Galer street, about 11 feet east of First Avenue West, and between that avenue and Queen Anne avenue, toward the east. On December 29, 1909 about 10:15 p. m., respondent, who was a teamster, started across Galer street to an alley on the opposite side, where a barn was located in which he kept his horses. He testified the distance from the curb in front of Queen Anne Court to the south car track was about 14 feet; that the night was dark and foggy; that he could not see clearly; that he walked from the curb to the south track; that he first looked west then east, and was about to look west again, when a car running easterly on the south track struck and injured him, and that the motorman did not ring a bell or sound a gong. Respondent knew nothing after the car struck him, being then unconscious. The motorman, a witness for appellant, was the only other person who saw him near the track. His testimony indicated negligence on the respondent's part. Other witnesses produced by respondent testified the night was foggy, that the car ran at a dangerous speed of from 20 to 25 miles per hour, and that they heard no bell or gong. Evidence was produced by appellant to show the night was clear; that respondent's view was unobstructed; that the gong was sounded; that the car did not run at an excessive or dangerous speed; that it had been running up a 4.8 per cent. grade for 360 feet when it struck respondent; that respondent negligently and unexpectedly placed himself in a position of danger; that the motorman did not have time to prevent the accident, although his car was under good control, and that he made an excellent emergency stop.

When considering appellant's motions for a nonsuit and a directed verdict, it is our duty to accept as true all evidence supporting respondent's contentions. We will therefore proceed upon the theory that the evidence was sufficient to show the night was dark and foggy; that the car was running at an excessive and dangerous speed; that no bell or gong was sounded; and that by reason thereof appellant negligently operated its car.

Appellant contends the undisputed physical facts, as disclosed by the evidence, show respondent was guilty of contributory negligence, which was the proximate cause of the accident. It is undisputed that the car had been running upgrade for about 360 feet, but before reaching that grade it had just left a like downgrade. Respondent was 36 years of age, in good health, and possessed of usual faculties, had resided for some months in Queen Anne Court, was familiar with the tracks, the locality, and the running of the cars. In his testimony he said: 'I opened the door and stepped out on the sidewalk, and looked down towards the street, down towards the west, and did not see anything, and I looked up east, looked up the hill, and did not see anything; and I kept on going, going on out, stepped off the curb, and looked to the westward again, and I could not see very far; it was so foggy; and I did not notice anything, and I looked up the east way, up the hill, and it was all clear of cars from the end of the hill, and, as I turned around my head, that is the least I remember; that is all I know. I was struck by something.'

The hill of which respondent speaks was to the east, at Queen Anne avenue, practically one city block distant. It will be noticed from his statement that he could see that far, notwithstanding the fog, as he says: 'It was all clear of cars from the end of the hill.' The car that struck him came from the west. It is conceded that under ordinary conditions a car could be seen in that direction a distance of several blocks. The undisputed evidence shows this car was lighted inside, and that it also carried a headlight, shining brilliantly toward respondent. If respondent could see through the fog as far as Queen Anne Hill, a distance of practically one city block, unquestionably he could see a well-lighted car for at least an equal distance, when it was approaching him from the west. He was not on the track, as he was struck by the outer edge or body of the car. He further testified: 'Q. How far is it from the place you last looked to the first street car track? A. To the first street car track? Q. To the street car track that the car was on? A. Why, I presume I was about five or six feet--that is, when I looked to the westward; about halfway when I looked to the westward, then I looked to the east; and I don't suppose but what I took a few more steps when I looked to the eastward; I was moving right along. Q. How far is it from the edge of the parking strip to the first car track? A. About 14 feet. Q. And had you looked to the westward at the time you left the parking strip? A. Yes; I looked to the westward after I left the parking strip.'

From this evidence and the undisputed situation, it unquestionably appears respondent walked too close to the track after he saw the approaching car, or at least, after he could or should have seen it in the exercise of ordinary care. The fact that the motorman operated the car at a dangerous and unlawful rate of speed, although negligence, would not entitle respondent to a recovery if he was also negligent, and his contributory negligence was the proximate cause of the accident. If, as he says, he looked west toward the approaching car when he was halfway from the curb to the track, he did so when he was within seven feet of the track. Thereafter he could not have proceeded more than two or three ordinary steps. He had not reached the track when struck. It is unreasonable to accept the theory that he could see to the top of the hill at Queen Anne avenue to the east, and yet within two or three steps of the track could not see for enough west, aided by a brilliant headlight, to observe that the car would probably strike him before he reached the track, as he ...