Franey v. Seattle Taxicab Co.

• Decision Date: 13 July 1914
• Docket Number: 11917.
• Citation: 80 Wash. 396,141 P. 890
• Parties: FRANEY v. SEATTLE TAXICAB CO.
• Court: Washington Supreme Court

141 P. 890

80 Wash. 396

FRANEY v. SEATTLE TAXICAB CO.

No. 11917.

Supreme Court of Washington

July 13, 1914

Department 2. Appeal from Superior Court, King County; John E Humphries, Judge.

Action by James Campbell Franey, a minor, by Gertrude Franey, his guardian ad litem, against the Seattle Taxicab Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Brightman, Halverstadt & Tennant, of Seattle, for appellant.

Hughes McMicken & Dovell, of Seattle, for respondent.

MOUNT J.

The plaintiff brought this action by his guardian ad litem to recover damages on account of being run down by an automobile in the city of Seattle. He alleged that the defendant was negligent in driving its car at an excessive rate of speed without giving any warning, in violation of an ordinance of the city of Seattle. The defendant denied negligence, and alleged contributory negligence of the plaintiff. The case was tried to the court, and a jury, and resulted in a verdict and judgment in favor of the plaintiff for $500. The defendant has appealed.

It appears from the evidence that the plaintiff was riding upon the rear end of a wagon which was being driven by an acquaintance. The wagon was traveling east up the grade on Jackson street just previous to his injury. Jackson street is a paved street running east and west. It intersects Fourteenth Avenue South, which runs in a northwesterly and southeasterly direction. There are double street car tracks on both of these streets. When the plaintiff arrived at the east line of Fourteenth Avenue South, upon the south side thereof, he alighted from the rear end of the wagon and started along the usual crossing for pedestrians, northwest across Jackson street. He had traveled but a few feet from the wagon where he had alighted when he was struck by the automobile, which was traveling down the grade westerly along Jackson street. In the accident the plaintiff's skull was fractured by the blow, and he was rendered unconscious.

The evidence offered in behalf of the plaintiff tended to show that the automobile was traveling at the rate of 25 miles an hour about a block east of the accident. One witness testified that it was going at a terrific speed at the time of the accident. Another witness testified that after the automobile struck the plaintiff it continued running for half a block before it was stopped. The evidence on the part of the plaintiff also tends to show that he had traveled 6 feet or more upon the crossing after leaving the wagon from which he had alighted and before he was struck by the automobile. Also that there were no warning signals given of the approach of the automobile. The plaintiff was going upon the usual way traveled by pedestrians in crossing from one side of Jackson street to the other along Fourteenth Avenue So. At the close of the plaintiff's evidence, the defendant moved the court for a directed verdict, on the ground that no negligence was shown, and that the plaintiff himself was negligent. This motion was denied, and error is based thereon.

An ordinance of the city of Seattle fixes the maximum speed of automobiles on city streets at 12 miles per hour, and requires drivers of automobiles to sound a warning when approaching any street intersection. It is apparent from the abstract of record brought here that the defendant's automobile was traveling at a greater rate of speed than 12 miles per hour. It was therefore guilty of negligence in driving upon this crossing at an excessive rate of speed without blowing the horn or sounding a warning.

It is argued by the appellant that this case is controlled by the rule in Harder v. Matthews, 67 Wash. 487, 121 P 983, where the plaintiff walked from behind a wagon into the street without looking for approaching automobiles, and was injured. But in that case Mrs. Harder was not at the usual crossing, but was near the middle of the block; while in this case the plaintiff was upon the usual crossing for pedestrians. And it was the duty of the driver of the automobile, especially when driving at an excessive rate of speed, to observe footmen upon the usual crossing. It is true the plaintiff but a moment before had alighted from the rear end of the wagon; and there was testimony on the part of the defendant showing that the plaintiff emerged from the rear end of the wagon immediately before he was struck. But the evidence on the part of the plaintiff shows that he had emerged several feet from the rear end of the wagon and was in sight of the driver of the automobile before it reached the crossing. It was the duty of the driver of the automobile, therefore, to avoid striking the plaintiff; and he...