Johnston v. Seattle Taxicab & Transfer Co.

• Decision Date: 22 May 1915
• Docket Number: 12302.
• Citation: 148 P. 900,85 Wash. 551
• Court: Washington Supreme Court
• Parties: JOHNSTON v. SEATTLE TAXICAB & TRANSFER CO. et al.

148 P. 900

85 Wash. 551

JOHNSTON v. SEATTLE TAXICAB & TRANSFER CO. et al.

No. 12302.

Supreme Court of Washington

May 22, 1915

Department 2. Appeal from Superior Court, King County; John E Humphries, Judge.

Action by Martina Johnston against the Seattle Taxicab & Transfer Company and others. From a judgment for plaintiff, the Taxicab Company, the Puget Sound Bridge & Dredging Company A. C. Goerig and wife, and F. C. Gribble and wife appeal. Judgment against the Taxicab Company affirmed, reversed as to the Puget Sound Bridge & Dredging Company and F. C. Gribble and wife, and reversed and remanded as to defendant A. C Goerig and wife.

John W. Roberts, Geo. L. Spirk, and Brightman Halverstadt & Tennant, all of Seattle, for appellants.

McCafferty, Robinson & Godfrey, of Seattle, for respondent.

MAIN J.

The purpose of this action was to recover damages for personal injuries alleged to be due to the negligence of the defendants. In the original complaint the Seattle Taxicab & Transfer Company, a corporation, and Frederick M. Gribble and wife, were made defendants. Subsequently, upon motion of the taxicab company, A. C. Goerig and wife and the Puget Sound Bridge & Dredging Company, a corporation, were made defendants. The cause was tried to the court and a jury. A verdict was returned in favor of the plaintiff and against all of the defendants. Motion for a new trial being made and overruled, the defendants appeal.

The facts, so far as necessary to an understanding of the questions presented upon this appeal, are in substance as follows: On January 1, 1913, the Elks Investment & Construction Company, a corporation, being then the owner of a lot at the southwest corner of Fourth avenue and Spring street, in Seattle, contracted with the Puget Sound Bridge & Dredging Company for the erection of a building thereon. This contract provided that the building should be constructed according to the plans and specifications prepared by the architect for the Elks Investment & Construction Company. It also provided that the work was to be done under 'the direction of the authorized representative of the owner, who shall be denominated herein as superintendent or architect.'

The bridge company contracted with one A. C. Goerig to do 'all the excavating for the Elks building located on the southwest corner of Fourth avenue and Spring street, in the city of Seattle, Wash.' The excavation was to be done according to the plans and specifications prepared by the Elks Investment & Construction Company. The work was to be done 'satisfactory to the superintendent in charge and the party of the second part [the bridge company].' After this contract had been entered into, Goerig entered upon the performance of the work called for by the contract. The dirt was removed by means of teams and wagons. When a wagon was loaded, it would come out on Spring street at the alley, which was equidistant from Fourth and Third avenues; Spring street extending east and west. Third and Fourth avenues were at righ angles to Spring street. The grade of Spring street from Third to Fourth avenue is about 18 per cent. This street, between the avenues mentioned, is paved with granite blocks. The grade of Spring street being very heavy, a team of horses was unable to hold back a wagon loaded with dirt as it descended from the alley to Third avenue. For the purpose of aiding the teams in holding back the loaded wagons during their descent of this grade, Goerig devised a counterweight, which consisted of a pulley placed in a post at the alley corner, a three-eighths inch cable, and a sled or drag, about four feet square, loaded with rock. The cable passed through the pulley. Upon one end of it was a hook. The other end was attached to the sled. On the opposite side of the sled to the one where the cable was attached, there was a short cable, a few feet in length, with a hook on the end. When a loaded wagon would come out of the lot to the alley corner, the hook at the end of the short cable would be attached to the rear end of the wagon. The team pulling the loaded wagon would then start down the hill, and the sled would drag behind the wagon. The direction taken was from the alley corner to the northwest corner of the intersection of Spring street with Third avenue. When the team and wagon reached this latter point, the sled was detached from the wagon. The grade from there on was comparatively level. When the next loaded wagon would start down, the hook attached to the long cable would be made fast to the rear end of the wagon, and as it descended, the sled would be dragged up to the alley corner. This operation was repeated as the work progressed; one loaded wagon pulling the sled down, and another pulling it up. In each instance the sled operated as a brake or counterweight to hold back the loaded wagon as it descended the grade. When the drag was not in use, it was taken from the street and placed inside the area excavated.

On the morning of February 18, 1913, while the work of excavating was in progress, the plaintiff employed the taxicab company to convey her in one of its vehicles from her home to her office in the Burke building. In making this trip, the driver of the taxicab, instead of going two blocks further to the north where there was a comparatively level street, attempted to go down Spring street from Fourth to Third avenue. The pavement was wet and slippery. The taxicab was not equipped with either chains or nonskid tires. After the taxicab left the west margin of Fourth avenue, and before it reached the alley between that avenue and third avenue, it began to skid, and continued to skid for a distance of from 120 to 150 feet. While skidding, it passed over the cable attached to the drag at a point about the center of the street and about the middle of the cable. The cable extended at that time from the alley corner in a northwesterly direction to near the northwest corner of the intersection of Third avenue with Spring street. The sled at this time was located about two feet from the curb on the north side of Spring street and close to Third avenue. The taxicab, from the point where it began to skid, continued in its uncontrolled descent until it collided with the sled at the point above mentioned. From this collision the plaintiff sustained injuries for which she brought the present action.

Upon the trial in the superior court, at the conclusion of the plaintiff's evidence, each of the defendants moved for a nonsuit. These motions were denied. At the conclusion of all of the evidence, the defendants challenged the sufficiency thereof to sustain a verdict, and moved for a directed verdict. The request for a directed verdict was denied as to all of the defendants. The cause was submitted to the jury and a verdict returned for the plaintiff in the sum of $3,000. As already stated, from the judgment entered upon this verdict, all of the defendants have appealed.

The respondent opens her brief with a motion to dismiss the appeal and affirm the judgment as to the taxicab company. The facts pertinent to this motion are these: The judgment against the defendants was entered on April 13, 1914. On June 6th thereafter, the bridge company, Gribble and wife, and Goerig and wife appealed from this judgment by giving notice of appeal and serving the same upon the respondents' attorneys and the attorneys for the taxicab company. On the same day a cost and supersedeas bond on behalf of the bridge company and Gribble and wife was filed, and a cost bond on behalf of Goerig and wife. On July 3d the taxicab company sought to perfect an independent appeal by serving and filing a notice thereof, and on July 8th thereafter filed a cost and supersedeas bond. From these facts it is apparent that more than ten days had elapsed after the notice of appeal by the other appellants had been served upon the attorneys for the taxicab company before that company served its independent notice of appeal. Under the statute (Rem. & Bal. Code, § 1720) it...