Hellieson v. Seattle Elec. Co.

• Court: Washington Supreme Court
• Writing for the Court: MORRIS, J. FULLERTON, J.
• Citation: Hellieson v. Seattle Elec. Co., 105 P. 458, 56 Wash. 278 (Wash. 1909)
• Decision Date: 10 December 1909
• Parties: HELLIESON v. SEATTLE ELECTRIC CO.

105 P. 458

56 Wash. 278

HELLIESON v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

December 10, 1909

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Helga Hellieson against the Seattle Electric Company. From a judgment for plaintiff, defendant appeals. Reversed, and case remanded for dismissal.

James B. Howe and Hugh A. Tait, for appellant.

Martin J. Lund and Vince H. Faben, for respondent.

MORRIS J.

On September 17, 1907, the respondent left the place where she was temporarily employed to go to her home on the corner of Pine street and Bellevue avenue, Seattle. She walked west on the north side of Pine street, until she came to Bellevue avenue. When she reached the east side of Bellevue avenue she saw two cars, one headed east and the other west on the west side of Bellevue, which it appears was the usual stopping place for cars at that street intersection. She was then living on the southwest corner of these two streets, and, thinking she had time to cross the track before the east-bound car reached the east crossing, she started to cross Pine on the east side of Bellevue. At the time she reached the crossing it was dark, about 7:30 p. m., and, after seeing the situation of the two cars on the west side of the crossing, she says she started across, and when, using her own language, 'a little out from the crossing,' she looked east on Pine, and, seeing no car, went on. She had one foot over the first rail, when she saw a car approaching from the east. She says she only had time to withdraw her foot when the car struck her upon her left shoulder, throwing her to the sidewalk, and inflicting the injuries complained of. In fixing the time she looked east with reference to the time she started to cross, she says: 'It was just a short time before I crossed. * * *. I know it was before, but I cannot tell how long. * * * I could not say any time. It was just a moment before I went over.' Another answer was: 'I can say it was better than a moment before.'

The negligence complained of was failure to ring the bell, and she testified that no bell was rung. The testimony of other witnesses upon this point was given by two passengers on the car and the motorman. One passenger, Jones, testified: 'I couldn't say that it did ring or that it didn't ring.' The other passenger, Pickford, says the bell was rung three or four times between Summit (one block east) and Bellevue, and that the bell was rung within a car length of the crossing. The motorman testified that he rang the bell three or four times between Summit and Bellevue, and once or twice just before striking respondent. He also testified he did not see the respondent until she stepped out from the shade of a tree and stepped onto the track. This tree was shown to be set about 12 feet east from the crossing, and its foliage was from 15 to 18 feet in diameter. It was also shown that there was an arc light hanging nearest to the northeast corner of the crossing; that between Summit and Bellevue the car was running on a downgrade of 7.3 per cent. at eight or ten miles an hour; and that from the curb where respondent started to cross the street it was ten feet to the first rail, over which she placed her foot before she saw the car. The verdict was in favor of respondent, and, the court denying appellant's motion for judgment notwithstanding the verdict, this appeal is taken, and this ruling and others involving the same point are assigned as error. It is apparent that the only question involved in the appeal is: Was respondent guilty of such contributory negligence as to preclude her recovery.

Respondent had lived on the southwest corner of this crossing for about eight months, and was familiar with the fact that a number of different car lines ran over these tracks, and that cars passed there frequently in both directions. She approached this crossing, then well knowing the situation, and she was bound to use such a degree of care as an ordinary, prudent person, having such knowledge of the situation would use under like circumstances. If she had done so, the conclusion is irresistible she would not have been injured. She says she looked a moment before she started across, but saw nothing, and heard nothing; yet it is shown by an engineer familiar with the crossing that, taking the speed of the car at 10 miles an hour, her speed at 2 1/2 miles an hour, and the distance from the place where she said she looked east to the track at 10 feet, the car was then 42 feet east of the crossing. We cannot understand how one looking for a car can fail to see a lighted car with its headlight throwing on the track ahead of it, and only 42 feet away. The physical facts of the situation are a unit in showing respondent could not have used ordinary care in attempting the crossing. If she looked, she must have seen the car, or else she gave such an indifferent and casual glance, as was of no value to her in determining whether or not a car was approaching. In either event, she was not using ordinary care. The car was there with its lights burning, and such a look as would be given by an ordinarily prudent person would have located it. Pedestrians in crossing the tracks of a street railway in the daytime or in the nighttime, knowing as respondent knew that the crossing was one where cars frequently passed, must use their senses to apprise them of the danger, if any. They cannot heedlessly and carelessly cross the track, and throw the entire burden of their safety upon the motorman of any approaching car. The rights of the pedestrian and that of the street railway are equal. Their duties are reciprocal. Neither has the exclusive right of way. Each must have due regard to the rights of the other.

It is urged by respondent that, if it should appear that she attempted the crossing without looking and without listening such failure is not contributory negligence in law; citing Roberts v. Spokane St. Ry. Co., 23 Wash. 325, 63 P. 506, 54 L. R. A. 184, and other cases from this court, in which it is held that failure to look and listen before crossing the tracks of an electric railway in a public street where the cars have not the exclusive right of way is not negligence per se. Such undoubtedly is the rule here, but such a rule does not mean that one can heedlessly and carelessly cross the track without using his senses for his protection; nor does it mean that those who have eyes to see, but see not, and ears to hear, but hear not, are exercising due care. In determining the question of contributory negligence, due care or ordinary prudence is the only known test. What would be due care under certain circumstances would not be due care under other and different circumstances; and, in determining this question, this court has refused to predicate its answer alone upon the fact that it did not appear that the person about to cross the track looked or listened, and say such failure of itself alone constitutes negligence in law. Other facts existing and present and affecting the situation must be given their due weight in determining the question of contributory negligence. In other words, it is not alone: Did the pedestrian look and listen? And, upon answering that question in the negative, say it is negligence per se, and there can be no recovery. But the test is: Did the pedestrian, under all the circumstances, use such a degree of care, caution, and prudence as an ordinarily prudent and careful pedestrian would use under like circumstances? And in answering such test this court has in a number of cases held that the failure to look and listen was a fact to be considered in determining whether or no there was contributory negligence as a matter of law. Skinner v. Tacoma Ry. & Power Co., 46 Wash. 122, 89 P. 483; Mey v. Seattle Electric Company, 47 Wash. 497, 92 P. 283; Dimuria v. Seattle Transfer Company, 50 Wash. 633, 97 P. 657. The same rule has been applied to the drivers of wagons in crossing the track. Christensen v. Union Trunk Line, 6 Wash. 75, 32 P. 1018; Criss v. Seattle Electric Company, 38 Wash. 320, 80 P. 525; Coats v. Seattle Electric Company, 39 Wash. 386, 81 P. 830; Davis v. Railroad Company, 47 Wash. 301, 91 P. 839; Helber v. Spokane St. Ry. Co., 22 Wash. 319, 61 P. 40. The Roberts Case cites as authority for the rule therein announced, Robbins v. Springfield R. R. Co., 165 Mass. 30, 42 N.E. 334, and Shea v. St. Paul City Ry. Co., 50 Minn. 395, 52 N.W. 902. An examination of the Massachusetts and Minnesota cases will show that the announcement of such a rule was never intended to be construed as a holding that failure to look and listen was not a circumstance to be considered in determining...