Helber v. Spokane Street-Railway Co.

• Decision Date: 04 April 1900
• Court: Washington Supreme Court
• Parties: HELBER v. SPOKANE ST. RY. CO.

61 P. 40

22 Wash. 319

HELBER v. SPOKANE ST. RY. CO.

Supreme Court of Washington

April 4, 1900

Appeal from superior court, Spokane county; A. L. Miller, Judge.

Action by John Helber against the Spokane Street-Railway Company for injuries received in a collision at a street crossing. From a judgment in favor of defendant, entered on a motion for judgment at close of plaintiff's testimony, plaintiff appeals. Affirmed.

Hand Taylor & Graves, for appellant.

Stephens & Bunn, for respondent.

DUNBAR J.

This is an action brought by the appellant against the respondent the Spokane Street-Railway Company, to secure damages for injuries alleged to have been sustained by reason of a collision between his wagon, in which he was sitting and driving his team, and a street car owned and operated by respondent in the city of Spokane. The complaint is the ordinary complaint in such cases. The answer tenders the issue of contributory negligence. At the close of plaintiff's testimony the defendant challenged the sufficiency of plaintiff's evidence, and asked for judgment. The motion was sustained. The case was taken from the jury, and judgment for costs against the plaintiff was given by the court. From such judgment this appeal is prosecuted.

The only questions presented for our consideration are: Did the testimony of the plaintiff, conceding it to be true, show that, as a matter of law, the plaintiff was guilty of contributory negligence? And, if so, was such negligence the proximate cause of his injury? A careful consideration of the whole testimony convinces us that both questions must be answered in the affirmative. Sprague street, in the city of Spokane, runs east and west. Pine street runs north and south, reaching the south line of Sprague street, and terminating there. It was on Sprague street, about 23 feet north of the termination of Pine street, that the accident occurred. The plaintiff was a milkman, driving a milk wagon and was coming down Pine street from the south, and attempting to cross Sprague street to reach a point where there was a water trough and water tank. He testified that when about 40 feet from the south line of Sprague street he looked east for a car, and did not see any coming; that he could have seen a car for the distance of a block from where he looked, but that, not seeing one, he thought that he would have plenty of time to make the crossing, and did not look any more; that at the time he was driving in a fast trot, at the rate of about 8 miles an hour, but just before reaching the street he brought his horses down to a slow walk, at the rate of about a mile and a half per hour; that he was in a covered milk wagon, and could not see without putting his head out, and that he did not put his head out again until he heard some one yelling, a second before the collision. The testimony shows that the car was approaching at the rate of from 12 to 14 miles per hour. This was about 7 o'clock in the morning, and the plaintiff testified that he was acquainted with the road, and knew that a car was due about that time. He testified on cross-examination that his wagon was moving very slowly when it was struck that the horses were in a slow walk, and that his attention was fixed on the watering place across the street; that, if he had looked when he got to Sprague street, there was nothing to prevent him from seeing the car comming, and that he had plenty of time, if he had looked after he reached Sprague...