Foster v. Seattle Elec. Co.

• Decision Date: 31 May 1904
• Citation: Foster v. Seattle Elec. Co., 35 Wash. 177, 76 P. 995 (Wash. 1904)
• Parties: FOSTER v. SEATTLE ELECTRIC CO.
• Court: Washington Supreme Court

76 P. 995

35 Wash. 177

FOSTER v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

May 31, 1904

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Azoa Foster against the Seattle Electric Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Benson & Hall, for appellant.

Struve Hughes & McMicken for respondent.

FULLERTON C.J.

The appellant was injured while attempting to board one of the respondent's street cars in the city of Seattle, and brought this action to recover for her injuries, averring that they were caused by the negligence of the agents and servants of the respondent. The trial resulted in a verdict and judgment for the respondent.

The car which the appellant was attempting to board was a large, vestibuled car, having but one place open at the time of the accident where passengers could board the same, which was at the right-hand side of the rear platform. As the car proceeded along its route, it passed westerly along Pike street to the intersection of Second avenue, where it turned south, stopping at a few feet south of Pike street. The evidence of both sides agrees that, while the car was standing where it had stopped, two passengers entered it, and that the conductor thereupon signaled the motorman to proceed, and that the car started just as the appellant was in the act of boarding the same. The appellant's evidence tended to show that she was following immediately after the two passengers who did enter the car in safety--so close, in fact, that she was compelled to wait an instant for the last one--and that she was in a position, when the conductor signaled the car to start, that he could have seen her, had he looked in that direction. The defendant's evidence tended to show that the conductor was in a position where he could plainly see the entrance when the car came to a stop on Second avenue. He testified that when the car stopped he ceased the work he was engaged in, and looked back to the car entrance, and saw the two passengers enter; that, when the second one got on, he looked to ascertain if any one else was entering or desirous of entering, and, seeing no one, gave the signal to go ahead and began again his regular duties. There was evidence tending to corroborate the conductor, and evidence also to the effect that the appellant approached the car from the rear, out of the sight of the conductor, reaching it after the signal to go ahead had been given, and just as the car started; that others standing by saw and appreciated her danger, and sought to warn her by hallooing that the place where the accident occurred was a busy thoroughfare; and that more than the ordinary number of people were there at that time, owing to the fact that some social gathering had been held during the evening at the Masonic Temple, which stood near this place, and people were then leaving that place.

The Court, in charging the jury, gave, among others, the following instructions:

'(2) I instruct you, second, that if you believe from the evidence in this case that the plaintiff, in her efforts to get upon the defendant's car at the time and place and manner alleged in her complaint, acted as an ordinarily prudent woman generally acts under circumstances entirely similar to all those which then surrounded the plaintiff; and if you believe, from a preponderance of the evidence, that the plaintiff attempted to get upon the defendant's car while the same was standing still, and immediately after the other passengers had boarded the train, and that the defendant's servants started said car without having exercised the highest degree of care reasonably practicable under the circumstances and conditions existing at the time and place in question to see that all persons who were in the act of boarding the said car were in places of safety, and that the negligent starting of the said car threw the plaintiff to the pavement and injured her as alleged in the complaint--then and in that event your verdict will be for the plaintiff.

'(3) If you find for the plaintiff, you will by your verdict award her one such gross sum, not exceeding the demand of her amended complaint, which is fifteen thousand dollars, as will, in your opinion, from the evidence, justly, fairly, and fully compensate the plaintiff for all suffering, if any, which she has necessarily endured, as well as all that she will necessarily endure in the future, if any, for all time which the plaintiff has necessarily lost, if any, and all which she will necessarily lose, if any; for all permanent impairment of health, if any, which she has sustained; for all medical treatment, if any, for which she has become obligated: provided, however, that you will not permit the plaintiff to recover for anything which was not the proximate, natural, and necessary result of the negligent acts complained of in the plaintiff's complaint.

'(4) Contributory negligence is pleaded as a defense in this case, and the burden of proving the same is upon the defendant. To sustain this defense, it must appear to you, by a fair preponderance of the evidence, that the plaintiff contributed to her own injury by failing to act as ordinarily prudent women generally act under circumstances entirely similar to all those which surrounded the plaintiff at and just prior to her injury. Every person who rightfully attempts to board a street car as a passenger, at a place where such car usually receives passengers, has a right to assume that the men in charge of such car will exercise the highest degree of care reasonably practicable under the circumstances for the safety of all persons upon the said car, or who may be lawfully attempting to get upon the same; and no passenger should be held guilty of contributory negligence because he or she failed to anticipate negligence, if such there was, upon the part of the men in charge of the car which he or she was attempting to board.'

'(6) With respect to the degree of care owed by the defendant to its passengers, you are instructed that the duty enjoined by the law upon its conductor and motorman does not require the exercise of the highest degree of care possible to avoid an accident, but only the highest degree of care reasonably practicable under the circumstances and conditions existing at the time and place in question, and consistent with the proper discharge of all the other duties of such employees. By the term

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