Herrick v. Washington Water Power Co.

• Decision Date: 27 August 1913
• Court: Washington Supreme Court
• Parties: HERRICK v. WASHINGTON WATER POWER CO.

134 P. 934

75 Wash. 149

HERRICK v. WASHINGTON WATER POWER CO.

Supreme Court of Washington

August 27, 1913

Department 2. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Fred Herrick against the Washington Water Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Post, Avery & Higgins, of Spokane, for appellant.

W. H Plummer and Henry Jackson Darby, both of Spokane, for respondent.

ELLIS, J.

This is an action for personal injuries sustained by the plaintiff by being run over by one of the defendant's street cars. The facts material to the discussion are as follows:

The defendant owns and operates a doubletrack street car line on Front avenue in the city of Spokane, which runs east and west. On August 1, 1911, at about 1 o'clock in the morning, the plaintiff was lying upon Front avenue between Market street and Division street at a point estimated by different witnesses at from 50 to 150 feet east of Division street, which crosses Front avenue at a right angle, with his body between the two tracks, and his right leg across the south rail of the north track. While he was in that position one of the defendant's cars running west on the north track ran over his right leg near the foot, so injuring it as to require amputation about eight inches below the knee. The car had made a safety stop at Market street, where the tracks of another company crossed the defendant's tracks, and after crossing Market street the power was thrown off, and the car allowed to drift down a slight grade toward Division street.

There was evidence strongly tending to show that the plaintiff was intoxicated to the point of unconsciousness. He was admittedly unconscious when run over, and nearly every witness who came near him at that time and at the emergency hospital testified to a strong odor of intoxicants. There was also evidence that he was addicted to drink. The plaintiff testified that he had taken only two glasses of beer, one of which was taken shortly before he started to the place of the accident to take a street car, that he became dizzy and sick, and he suspected that somebody had drugged the beer.

The evidence shows that the motorman was experienced, and he testified that he did everything in his power to stop the car after he saw the body on the track and appreciated that it was a human being. The car and its equipment was in proper condition, and the headlight was of the best type in ordinary use. The motorman testified that the car was 15 or 20 feet from the man when he first saw him, and the car ran 25 or 30 feet before it was stopped. The defendant introduced evidence, based on experiments, tending to show that, with the street lights in the condition that they were on the night in question, objects placed upon the track could not be distinguished from shadows beyond a distance of 30 or 40 feet. The plaintiff introduced evidence, based on observation by the witnesses, tending to show that the rails of the track were on such a night visible and shining for more than a block, and that any object placed thereon would be easily discernible for about that distance. There was an arc light at the intersection of Division street and Front avenue, which the defendant's evidence tended to show illuminated the ground to a distance of 40 to 45 feet, and which the plaintiff's evidence tended to show cast an illumination to a distance of about 80 feet. The evidence also showed that a headlight such as that on the car in question threw a light for a distance of 30 to 40 feet; the defendant's evidence being to the effect that with such a light a motorman could see an object on the track 30 feet in advance so as to realize what it was. An expert witness for the defendant testified that a car running 10 miles an hour can be stopped in from 50 to 60 feet by using the air brake; if running 8 miles an hour, in from 45 to 50 feet; and running 6 miles an hour, in about 40 feet. The testimony of the various witnesses tended to show that the car at the time of the accident was running at a rate of from 6 to 10 miles an hour.

The motorman was the only eyewitness of the accident, saving one May, a hotel bellboy, who testified that he was going home at 1 o'clock on the night in question, and when about 10 feet south of the southwest corner of Division street and Front avenue saw the plaintiff lying on the track about 50 feet east of the crossing track of Division street and Front avenue, and at the same time saw the street car running west on the north track at a distance of about 82 steps or about 130 feet from the plaintiff. One of the passengers on the car testified that immediately after the accident the motorman said he did not see the plaintiff 'until the fender was just right over him.' The conductor testified that the motorman said, "I didn't see him until we were almost onto him,' or words to that effect.'

The negligence charged in the complaint was unsafe fenders, insufficient brakes, insufficient headlight, operating the car at a dangerous rate of speed, contrary to the city ordinance, and, 'the failure on the part of the agents and servants of said defendant to use reasonable care and caution to observe plaintiff lying upon said track a reasonable tim before the car arrived at the place where plaintiff was lying, and within which distance said car should have been, and could have been, in the exercise of reasonable care, stopped before injuring plaintiff, and after it discovered plaintiff's perilous position, did not use reasonable care to avert injuring him. The negligence and carelessness on the part of defendant in not taking reasonable care and precaution not to injure plaintiff after he was placed in a perilous position.' The answer admitted the position of the plaintiff upon the track, denied all the allegations of negligence, and set up the affirmative defense of contributory negligence, which defense was traversed by the reply. The jury returned a verdict for the plaintiff for $4,500. The defendant moved for judgment, notwithstanding the verdict, and for a new trial, which motions were denied. Judgment was entered on the verdict. The defendant appealed.

At the close of respondent's evidence, the appellant moved the court to withdraw from the consideration of the jury all of the allegations of negligence save that of the charge of failure to observe the rule of last clear chance above quoted. Counsel for the respondent consented to the withdrawal, and the court said: 'My judgment in this case is that all that the plaintiff can submit to the jury is the question whether the motorman saw this man in time, in his condition, lying on the track there--in time to avoid injuring him by the exercise of ordinary care and diligence, and if, after he did see him, he exercised ordinary care in attempting to stop the car as soon as he could.' To which counsel for respondent answered, 'We consent that the case may be submitted on these two proposition.' The appellant contends that the court thus withdrew from the consideration of the jury every question save failure to use reasonable care to avert injury to the respondent after he was actually seen by the motorman, and that the court therefore erred in instructing the jury to the effect that the appellant would be guilty of negligence if the motorman saw, or by the exercise of reasonable care might have seen, the respondent on the track in time by the exercise of ordinary care to have avoided running over him. It is manifest from this instruction that the court did not intend in the colloquy about quoted to limit the appellant's liability to negligence after the actual discovery of the respondent's peril. It is also clear that the appellant's motion was not intended to so limit the issues, since it was directed expressly to the allegations of excessive speed, defective brakes, insufficient headlights, and insufficient apron, pilot, or fender. These were all the allegations to which the appellant's motion was directed, and to which respondent's counsel apparently intended to consent. This is further made apparent by a reading of the appellant's evidence thereafter introduced, much of which was intended to show that the motorman could not, in the exercise of ordinary care, by a proper lookout have discovered the respondent on the track in time to avoid the injury. If it had been clearly understood that the court had withdrawn every allegation of negligence from the jury save lack of reasonable care after the actual discovery of respondent's peril, all of this evidence would have been immaterial. We think it plain, therefore, that neither the court nor the parties intended to so limit the charges of negligence, and that the court did not err in giving the broader instruction, if it stated correctly the rule of last clear chance.

The court gave the following instructions:

'Ordinary care is such a degree of care as an ordinarily prudent person would exercise under similar circumstances and conditions. The failure to exercise such a degree of care is negligence. The court instructs you that all the allegations of negligence set up in plaintiff's complaint have been eliminated from this case, except the following: * * * 'The failure on the part of the agents and servants of said defendant to use reasonable care and caution to observe plaintiff lying upon said track a reasonable time before the car arrived at the place where plaintiff was lying, and within which distance said car should have been and could have been, in the exercise of reasonable care, stopped before injuring plaintiff, and after it discovered plaintiff's perilous position, did not use reasonable care to avert injuring him.' Therefore you will not consider any of the

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