Heath v. Wylie

• Citation: 109 Wash. 86,186 P. 313
• Decision Date: 16 December 1919
• Docket Number: 15471.
• Court: Washington Supreme Court
• Parties: HEATH v. WYLIE et al.

186 P. 313

109 Wash. 86

HEATH v. WYLIE et al.

No. 15471.

Supreme Court of Washington

December 16, 1919

Department 1.

Appeal from Superior Court, King County; A. W. Frater, Judge.

Action by Fred H. Heath, as administrator of the estate of Agnes Winifred Heath, deceased, against H. D. Wylie and another. Judgment of nonsuit, and plaintiff appeals. Affirmed.

Mils J Loveless, of Seattle, for appellant.

James B. Howe and A. J. Falknor, both of Seattle, for respondents.

MITCHELL J.

This is an action by Fred H. Heath, as administrator of the estate of Agnes Winifred Heath, deceased, to recover damages sustained by himself, the surviving husband, and Frank Harvey Heath the surviving minor son, because of the death of Mrs. Heath. It arose out of a collision between an automobile driven by Mr. Heath and a street car in charge of Wylie as motorman, belonging to the Puget Sound Traction, Light & Power Company, at a street crossing in Seattle. There were charges of negligence and a counter charge of contributory negligence. At the close of plaintiff's case in a trial to a jury, a judgment of nonsuit was granted, from which the appeal is prosecuted.

On July 15, 1918, at 6:10 p. m., Mr. Heath, sitting on the left-hand side, on the front seat, his wife and son on the rear seat was driving his automobile, top down, eastward on East Forty-Seventh street, which crosses at right angles Fourteenth Avenue Northeast upon which was operated a double-track railway, the west track for street cars going south. The collision occurred with a street car coming from Mr. Heath's left; that is, traveling south on the west track. It resulted in the death of Mrs. Heath. Mr. Heath had lived in the vicinity some time and was familiar with the scene. The streets were paved and the weather was fair. There was no other traffic near by to disturb. Immediately at the northwest corner of the two streets there was located what is called the 'Wilson building.' immediately east of which was a paved sidewalk 9 feet wide to the curb, thence street 13 1/2 feet to the nearer rail of the west car track. On the curb, running to the north, there was a string of ordinary telephone poles. North of the street intersections Fourteenth avenue is straight and practically level for more than 700 feet. The next street crossing Fourteenth Avenue Northeast to the north is East Fiftieth street, which is about 630 or 635 feet north of the north side of East Forty-Seventh street. Mr. Heath estimated the speed of the street car at 35 miles, while other of his witnesses placed it as high as 40 miles. Concerning the speed of his automobile, he said it was not going over 5 miles an hour, although he admitted that, in a report to the police department, and in his testimony at the inquest, he had stated he was going at a greater speed. At one time he testified that, when he got far enough along into Fourteenth Avenue Northeast and by the corner of the Wilson building, he could, and did, see, notwithstanding the telephone poles, 250 to 300 feet northward on that avenue; and at another time he testified that from that point he could see northward one-half the distance of 630 or 635 feet to East Fiftieth street. At one time he testified that, after the look to the north, he then looked to the south towards a street car approaching from that direction several blocks away, then looked in front, and never saw the street car coming from the north until it was within 40 or 50 feet of him. At another time,...