Jackson v. City of Seattle
Decision Date | 25 November 1942 |
Docket Number | 28676. |
Parties | JACKSON et ux. v. CITY OF SEATTLE. |
Court | Washington Supreme Court |
Department 2.
Action by Joseph G. Jackson and Gertrude A. Jackson, his wife against the City of Seattle, to recover for personal injuries sustained by wife in alighting from a city bus. From a judgment for defendant entered on a verdict, plaintiffs appeal.
Reversed and remanded with directions to grant new trial.
Appeal from Superior Court, King County; Roger J. Meakim, judge.
Allen Froude & Hilen, (now Allen, Hilen, Froude & DeGarmo), of Seattle, for appellant.
A. C Van Soelen and John A. Logan, both of Seattle, for respondent.
This is an appeal by the plaintiffs from a judgment entered on a verdict in a personal injury action in favor of defendant city. Appellants assign as error the giving of two instructions and the refusal of the trial court to give an instruction requested by them. The assignments raise two questions: First, was the evidence sufficient to take the issue of contributory negligence to the jury; and, second, did the evidence warrant the giving of an instruction on the theory of unavoidable accident.
These questions will be discussed in the order stated, and only so much of the evidence as is pertinent thereto will be reviewed.
In the city of Seattle, east-west East 55th street and north-south 33rd avenue Northeast meet to form a 'T' intersection, 33rd extending to the north, but not to the south, of 55th. Along that portion of the southerly margin of East 55th street which forms the closed end of the intersection, there is a concrete curb of the usual type and a concrete sidewalk. The walk is separated from the curb by a grass-grown parking strip nineteen inches wide. South of the walk, there is another grass strip extending to the wire boundary line fence of Calvary cemetery. Several feet east of the intersection, a telephone pole stands in the parking strip.
Respondent city operates a municipal passenger bus system, and, on June 10, 1940, at about 4:30 p. m., appellant wife (henceforth she will be referred to as though she were the only appellant) was a passenger on one of its vehicles traveling east on 55th and approaching the intersection just described. She gave the usual signal, and the bus driver pulled over to the curb at the south side of the street and stopped to let her out. In the act of alighting, she stepped into a hole in the parking strip and fell, suffering the injuries for which she brought suit.
According to the undisputed testimony of appellant and two other witnesses, the bus did not have a regular stopping place at the intersection in question. Sometimes it stopped west of the telephone pole, at other times east of it; and, on some stops, the pole would be opposite the center of the bus. One witness said it was a new route and the bus stops were not definitely located or marked until sometime after the accident. Appellant further testified:
On cross-examination, appellant said:
* * *
'
* * *
'
'
Appellant's account of the manner in which she got off the bus is not contradicted in any way, and the only testimony which could possibly have any bearing on the question of her contributory negligence was that of three firemen from a nearby fire station who, shortly after the accident, examined the parking strip at the place where appellant said she fell. One of them stated on direct examination:
(Italics ours.)
On cross-examination, he testified:
Another fireman testified:
(Italics ours.)
The following is from the cross-examination of the witness:
(Italics ours.)
The testimony of the third fireman is the chief reliance of respondent on the issue of contributory negligence. We quote from his direct examination as follows:
* * *'
And, on cross-examination:
(Italics ours.)
As the foregoing is the testimony respondent particularly stresses on the question under consideration, it should be carefully considered and closely analyzed. All the witnesses agreed that there was more or less grass growing on the parking strip and in the holes. When respondent's attorney asked Mr. Douglas if, when he stood ' at the far side of the grass or dirt,' he could see the hole, the witness replied, ' No, I could not.' (Italics ours.)
The parking strip was nineteen inches wide. The hole in question was approximately in the center of the parking strip. The 'far side of the grass or dirt,' as respondent's counsel put it, either at the curb or at the sidewalk which marked the opposite margins of the parking strip, could have been no more than a few inches from the hole. Hence, the import of the testimony was that, when the witness stood at the edge of the parking strip, a position relatively more favorable than was appellant's when she stepped down from the bus, he could not see the hole. It was only when he was immediately above it and, knowing it was there, directed his attention to it that he could see it.
Although respondent does not contend that there was a failure of proof of negligence on its part, we think it may be helpful to state briefly some general principles governing the duty of care of both parties under the...
To continue reading
Request your trial-
Steffen v. Schwan's Sales Enterprises
...524 P.2d 232, 233 (Wash 1974) (involving a case where "no evidence" of contributory negligence was elicited) (citing Jackson v. Seattle, 15 Wash.2d 505, 131 P.2d 172 (1942)) (emphasis added). Thus, if there is evidence from which contributory negligence may be reasonably inferred; e.g., Ste......
-
Smith v. Portland Traction Co.
...Lines, Inc., 147 Or. 588, 34 P.2d 616, 96 A.L.R. 718; Corrigan v. Portland Traction Co., 157 Or. 496, 73 P.2d 378; Jackson v. City of Seattle, 15 Wash.2d 505, 131 P.2d 172; Trzecki v. St. Louis Public Service Co., Mo., 258 S.W.2d 676; Allen v. Dillman, Ky., 249 S.W.2d 23; Houston Transit Co......
-
Beck v. Tacoma City Light, No. 30329-9-II (WA 4/12/2005)
...by unavoidable accident') (quoting Jordan v. Wyatt, 45 Va. (4 Gratt.) 151, 156, 47 Am. Dec. 720 (1847)); Jackson v. City of Seattle, 15 Wn.2d 505, 513, 131 P.2d 172 (1942) (`unavoidable . . . means . . . could not have been 41. CP at 327. 42. Haase, 57 Wn.2d at 867; Voorde Poorte, 66 Wn. Ap......
-
Webb v. City of Seattle
... ... there can be no recovery and your verdict should be for the ... defendant, The City of Seattle.' ... The ... question of whether an instruction such as above set out ... should be given depends upon the evidence presented during ... the trial. Jackson v. Seattle, 15 Wash.2d 505, 131 ... P.2d 172; Brewer v. Berner, 15 Wash.2d 644, 131 P.2d ... 940, 943 ... In the ... last case cited the rule was laid down in the following ... language: 'We hold to the view and are of the opinion ... that an ... ...