Hillebrant v. Manz

Decision Date12 December 1912
PartiesHILLEBRANT v. MANZ.
CourtWashington Supreme Court

Department 2. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by Frank Hillebrant against Frank Manz. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

R. W McClelland, of Seattle, for appellant.

John W Roberts, of Seattle, for respondent.

ELLIS J.

This is an action to recover damages for personal injuries suffered by the plaintiff by being struck by the defendant with his automobile.

The negligence charged was that the defendant negligently ran his automobile at a rapid, dangerous, and unlawful rate of speed that the automobile was without good and proper brakes, steering gear, and horn; and that the defendant negligently and carelessly, without sounding any horn or giving any other alarm, ran his automobile upon the defendant, inflicting the injuries complained of. The accident occurred in the city of Seattle, upon Westlake avenue near its intersection with Sixth street. In order to a proper understanding of the locality, we reproduce a plat with reference to which the witnesses testified, and which is admitted by both sides as approximately correct.

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The plaintiff testified that at about 2 o'clock in the afternoon of September 8, 1911, he was standing on the curb of the sidewalk on the easterly side of Westlake avenue, at a point about 12 feet southerly from the northerly rounded point of the triangular block bounded by Westlake avenue, Stewart street, and Sixth street. He stood near a guy post supporting the suspension wire for the trolley cable of the electric street car line which occupies the middle of Westlake avenue. He had some bundles in his arms, and was waiting to take a north-bound car for his home in Ballard. This post bore the sign 'Cars stop here,' and marked the usual place of stopping to take on passengers when any were waiting there. He located this post at the point which we have designated with the letter 'A' upon the plat. The distance in a right line from the curb to the nearest rail of the car track is about 21 feet. When his car arrived from the south, it passed the post a short distance before slowing up and stopping at a point about opposite to or a little beyond the rounded apex of the triangle as shown upon the plat. Just as the car was stopping he looked south on Westlake avenue, and saw no automobile or other vehicle. The street was perfectly clear. He stepped into the street, and started in a diagonal direction toward the car without looking back, which is the last thing he remembers. In taking his course from the guy post toward the car his back was necessarily turned to the south. He heard no gong, horn, or sound from the automobile, nor did he receive any other warning of its approach.

The conductor of the street car testified that he was standing in the rear vestibule of his car when it approached a point opposite the post marked, 'Cars stop here;' that he saw the plaintiff standing on the curb near the post with some bundles in his arms; that he gave the usual signal of two bells to stop the car; that the car ran a short distance past the post, stopping at a point about as indicated upon the plat; that he saw the plaintiff start diagonally across the intervening space toward the car without turning or looking back; that the witness looked south along Westlake avenue, and saw the defendant in his automobile approaching from the south at a very rapid rate; that, when he first saw the automobile, it was a short distance north of the intersection of Stewart street and Westlake avenue, on the east side of the avenue, at a point which he indicated upon the plat and which we have designated by the letter 'B'; that this point was about 75 or 80 feet from the place where the plaintiff was struck; that the automobile was running 25 or 30 miles an hour; that no horn was sounded or other warning given; that the plaintiff's back was toward the automobile; that as the automobile approached it swerved slightly toward the curb; that the plaintiff had taken only two or three steps when the automobile struck him on the right side and back, carrying him or throwing him 15 or 20 feet and knocking him senseless; that the automobile even then retained such speed that it skidded on into Sixth street, sliding and swinging around, finally stopping in Sixth street with the rear toward the street car; that the pavement was wet. This witness located the automobile when it finally came to a stop as we have indicated by the letter 'C' upon the plat. He testified that the defendant apparently threw on the brakes so that the rear wheel of the automobile slid along the pavement, as shown by the marks of the wheels for a distance of 60 feet or more before the plaintiff was struck.

Two other eyewitnesses of the accident, one of whom viewed it from the rear of the street car and the other from the sidewalk, testified to practically the same facts as did the conductor. All agreed that the automobile was running at least 25 miles an hour, and was still going very rapidly when it struck the plaintiff. All agreed that the defendant sounded no horn or gave other warning of his approach. This fact was also testified to by a woman who was on the rear of the street car waiting to get off. None of these witnesses testified to seeing the automobile until after it was a little distance north of Stewart street at or near the point marked 'B' upon the plat. None of the witnesses saw the plaintiff look south before starting for the street car. The evidence on this point rests upon his own testimony that he looked in that direction just before leaving the curb, and saw no automobile.

It seems to be admitted that Westlake avenue at the place in question was paved, and has a slight but uniform down grade toward the north, and that the pavement was wet.

An experienced chauffeur, called as an expert, testified that he had driven automobiles of various kinds, including the kind here involved; that he had experimented as to the distance within which an automobile could be stopped; that he was acquainted with Westlake avenue at the point here in question; that an automobile running at the rate of 25 miles an hour upon a wet pavement, slightly downgrade, would run about 100 feet after the brakes were applied before stopping. The evidence showed that it was about 100 feet from the point where the automobile was first observed by any witness to the point where it finally came to a stop. The plaintiff also introduced in evidence Ordinance No. 24597 of the city of Seattle. In section 13 is found the following: 'No person shall ride, drive or propel any automobile, autocycle or other motor vehicle, without having attached thereto a bell gong, or whistle, in good working order, and sufficient to give warning of the approach of said vehicle or machine, nor shall the driver thereof fail or neglect to sound such device as a warning upon approaching any other vehicle or pedestrian; or upon approaching any place where a person, or persons may be entering or leaving any street car, or other public conveyance or upon approaching any street intersection, or before passing around a corner. * * *' Section 17, as applied to the district here in question, prescribes a maximum lawful rate of speed of twelve miles an hour on paved streets. Section 30 is as follows: 'No person shall carelessly, heedlessly or...

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