Hynek v. City of Seattle, 27905.

• Decision Date: 08 February 1941
• Docket Number: 27905.
• Citation: 111 P.2d 247,7 Wn.2d 386
• Parties: HYNEK v. CITY OF SEATTLE.
• Court: Washington Supreme Court

111 P.2d 247

7 Wn.2d 386

HYNEK v. CITY OF SEATTLE.

No. 27905.

Supreme Court of Washington, En Banc.

February 8, 1941

Action by Grace Hynek, as administratrix of the estate of William Hynek, deceased, against the City of Seattle, for death of deceased when struck by street car. From a judgment on a verdict for plaintiff, defendant appeals.

Reversed with instructions.

MILLARD MAIN, DRIVER, and BLAKE, JJ., dissenting.

Appeal from Superior Court, King County; Roger J Meakim, judge.

A. C Van Soelen, Corp. Counsel, and C. C. McCullough, both of Seattle, for appellant.

Padden & Moriarty, of Seattle, and Wendell W. Duncan, of Yakima, for respondent.

SIMPSON Justice.

Plaintiff brought this action as administratrix of the estate of her deceased husband, William Hynek, for her own benefit and that of the four minor children of herself and William Hynek.

The complaint alleged that the city of Seattle maintains and operates a street car line upon 15th Avenue West, crossing West Boston street; that the tracks of the street car line extend in a northerly and southerly direction upon 15th Avenue West and across West Boston street, which runs in an easterly and westerly direction.

The complaint further alleged that February 22, 1938, between the hours of 6:30 P.M. and 7:00 P.M., William Hynek, having the intention of becoming a passenger upon a south bound street car upon 15th Avenue West, was crossing that avenue from the east to the west on the southerly crosswalk of West Boston street; that as he crossed the intersection he signalled the operator of the street car of his intention to board the car; that when William Hynek was at a place in the immediate vicinity of the easterly rail of the westerly car track, on which the car was approaching, he was struck and instantly killed by the street car.

The complaint then set out several charges of negligence on the part of the operator of the street car, which included failure to keep a proper lookout ahead, to keep the car under control, to heed the signal of William Hynek to slow down at the usual stopping place, to apply the brakes, to avoid a collision with deceased, and to use reasonable care in the street car's operation; and in operating it at a dangerous speed of thirty-five miles per hour.

Allegations followed relative to the ability of William Hynek to care for and support his family.

The answer contained a general denial of the allegations contained in the complaint and two affirmative defenses. The first affirmative defense pleaded Ordinance No. 64692 of the City of Seattle, while the second affirmative defense pleaded contributory negligence on the part of William Hynek.

The reply put in issue the allegations contained in the answer.

The case was tried to the court sitting with a jury, and resulted in a verdict in favor of plaintiff. After denying a motion for judgment n.o.v., or, in the alternative, for a new trial, the court entered judgment upon the verdict. The city of Seattle has appealed.

The assignments of error are: (1) Failure to sustain appellant's challenge to the sufficiency of the evidence to show primary negligence; (2) failure to decide as a matter of law that the negligence of the deceased was the direct, proximate cause of the accident; (3) refusing to grant appellant's judgment non obstante veredicto; and (4) refusing to grant appellant a new trial. Error was also predicated upon the giving of certain instructions.

The material facts are not in dispute. A brief summation of those most favorable to the respondent will suffice for the points to be considered. The deceased was thirty-nine years of age and in possession of all his faculties. He had owned and operated a cheese factory for about fifteen years in Faithhorn, Michigan. Other occupations in which he had been engaged were carpenter work, work in the fur business, and farming in Alaska. The Hyneks arrived in Seattle a few days Before the night of the fatal accident, having lived in small rural communities for many years, and were not familiar with the operation of street cars in the city of Seattle. This lack of familiarity extended to the knowledge of the side of an intersection on which street cars ordinarily stopped.

The accident in question took place at 15th Avenue West and West Boston street in Seattle. 15th Avenue West runs north and south and is paved for a width of about 53 1/2 feet from curb to curb, and slopes to the south on a 2.2 grade. There are two street car tracks in the center of the street. West Boston street extends east and west. It is improved east of 15th Avenue West, but is not improved west thereof. The customary place for taking on passengers for south bound street cars is at the north side of West Boston street, which is the northwest corner of the intersection. A building known as the 'Finnish Hall' stands at the southeast corner of the intersection, and another known as the 'Mattress Factory' is located on the northwest corner of the intersection. A store called the 'White Building' is situated on the west side of 15th Avenue approximately 280 feet north of the intersection.

Shortly prior to the accident, which happened between 6:30 and 7:00 P.M. on a dark and rainy evening, Mr. and Mrs. Hynek, intending to go down town, walked west on West Boston street and stopped under the canopy of the building on the southeast corner of the intersection. Their intention was to wait for a south bound street car. They waited under the canopy for some time and finally observed the lights and headlight of an approaching street car coming from the north at a distance of approximately 705 feet. They then stepped out toward the street, intending to board that car. They walked to the west in a direct line with the south sidewalk of West Boston street.

In describing the acts of herself and husband, respondent testified:

'Q. When you saw those lights, what did you do? A. We started to go across the street.

'Q. Where did you go to? A. We went to the right-hand side of the telephone pole.

'Q. Do you mean to the-- A. To the north.

'Q. You walked out to the telephone pole? A. Yes, to the north side of the telephone pole.

'Q. When you got there, did you step into the street immediately? A. No, we didn't.

'Q. What did you do? A. There was two cars coming from the south, and we waited until those two cars went through.

'Q. Was there any other traffic from the south? A. There was traffic, but quite a ways down.

'Q. Where was that traffic traveling, with reference to the middle of the street? What did it look to you like? A. Upon on the pavement, in the center of the street.

'Q. You say you stood there to let those cars go by? A. Yes sir.

'Q. Did you step into the street then? A. After the cars went through, we did.

'Q. Did you see this car again, after you saw it at West Wheeler Street, and Before you actually stepped into the street? A. Yes, we did. I saw it coming down by this white building there.

'Q. Did you know what was a white building at the time? A. I didn't know what it was, at that time.

'Q. Do you remember this light up the street? A. Yes.

'Q. And that is how you locate it now? A. Yes.

'Q. So you were in this vicinity, someplace? A. Yes.

'Q. When you stepped off the curb? A. Yes.

'Q. In which direction did you travel when you stepped off the curb, in this angle, or that angle, or did you go directly across on the crosswalk? A. Directly across. * * *

'Q. When you saw this car, somewhere in the vicinity of this white building, you say you proceeded to walk cross the street? A. Yes sir.

'Q. Tell us what Mr. Hynek was doing at that time, when you stepped off the sidewalk. A. When I stepped off the sidewalk, he let go of my arm, and he started on across.

'Q. He helped you off the curb? A. Yes.

'Q. And you proceeded across the street? A. Yes.

'Q. Was he ahead of you? A. He was.

'Q. How far do you think he was walking ahead of you, in your best judgment? A. I should judge about a foot or a foot and a half.

'Q. Were you directly behind him? A. Yes sir.

'Q. When you walked across the street, going across the street did you keep your eye on the car? A. Yes, I did.

'Q. Did you do anything with reference to this car you saw coming up the center of the street? A. Yes, I did.

'Q. What did you do? A. When we got about half-way in the concrete there, I glanced to the south. * * *

'Q. You say you were watching this car coming down? A. Yes.

'Q. Did your husband continue to go right ahead? A. Yes, sir, he did.

'Q. Do you know whether he was watching for the car, too? A. He was.

'Q. As you approached this easterly cartrack here, and when you turned back, did you see the car coming in here, again? (Indicating) A. Yes sir, I did.

'Q. Where was it when you saw it again there? A. It was----

'Q. Here is the Imperial Mattress Company's building. Where was it, with reference to being north of that? I want you to locate it with reference to that building A. It was in between the white building and the----

'Q. Somewhere between this place and this one? A. Yes sir.

'Q. What was your husband doing then, and what were you doing? A. We were watching the streetcar.

'Q. Were you doing anything else? A. No; just walking across.

'Q. Did you give any signal to the car? A. Yes, I did.

'Q. What was your husband doing? A. We were both waving our hands.

'Q. You were both waving your hands? A. Yes.

'Q. When you saw this car approaching this mattress factory, did you keep your eye on it? A. Yes sir.

'Q. What did it do? A. It slowed down, when it got close to this Imperial Mattress building.

'Q. What did you think it was going to do? A. I knew it was going to stop, after he started to slow down.

'Q. That was after you gave the signal? A. Yes...