Jordan v. Seattle, R. & S. Ry. Co.

• Decision Date: 06 November 1907
• Citation: 92 P. 284,47 Wash. 503
• Court: Washington Supreme Court
• Parties: JORDAN v. SEATTLE, R. & S. RY. CO.

92 P. 284

47 Wash. 503

JORDAN v. SEATTLE, R. & S. RY. CO.

Supreme Court of Washington

November 6, 1907

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by Lawrence V. Jordan, a minor, by Archealus M. Jordan, his guardian ad litem, against the Seattle, Renton & Southern Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Sachs &amp Hale, for appellant.

Jackson Silbaugh, for respondent.

RUDKIN, J.

The defendant company owns and operates a line of electric railway between the city of Seattle and the town of Renton. On the 13th day of August, 1906, the plaintiff became a passenger on one of the defendant's cars, and while such passenger was injured in a collision between the car upon which he was a passenger and a 'line car,' operated by the defendant company and running in the opposite direction over the same track. This action was brought to recover damages for the injury so received, and from a judgment in the sum of $500 in favor of the plaintiff the defendant has appealed.

The first two errors assigned relate to the giving and refusing of instructions, defining the degree of care which the law imposes on common carriers of passengers, and will be considered together. The instruction refused was as follows 'With respect to the degree of care owed by the defendant to its passengers, you are instructed that the duty enjoined by the law upon the defendant's conductors and motormen does not require the exercise of the highest degree of care possible to avoid an accident, but only the highest degree of care reasonably practicable under the circumstances and conditions existing at the time and place in question. By the term 'highest degree of care,' used in these instructions, is meant that degree of care which would be exercised under like circumstances by careful, prudent, and experienced conductors and motormen generally.' And the following was the instruction given: 'The jury are instructed that the defendant, at the time of the alleged accident, was the owner of and was operating an electric railway for the purpose of transporting passengers for hire and was bound to exercise the highest degree of care, skill and diligence practicable consistent with the operation of said electric railway and the cars used in the operation thereof, and taking into consideration the circumstances and conditions existing at the time and place in question, in order to prevent and avoid injury to the plaintiff, if you find plaintiff was a passenger on the car of said company, as alleged in his amended complaint, and the defendant is liable for the slightest negligence in said operation; and I further instruct you that the negligence of the agents, servants, and employés in charge of the operation of the cars on the electric road of defendant is, in law, the negligence of the defendant, for which the defendant would be, and is, liable.' The instruction requested by the appellant and refused by the court is, in substance, the instruction approved by this court in Foster v. Seattle Electric Co., 35 Wash. 177, 76 P. 995, and embodies a correct statement of the law. But the instruction given by the court is in our opinion equally free from objection. The statement that the appellant 'was bound to exercise the highest degree of care, skill, and diligence practicable consistent with the operation of said electric railway and the cars used in the operation thereof,' is certainly free from error, and the further statement that the appellant 'is liable for the slightest negligence in said operation' is but a corollary of the rule already announced, or at least was evidently so intended by the court. 'The definitions and explanations given by the various courts, and sometimes by the same court, of the degree of care to be required of carriers, are many and perplexing--in some cases irreconcilable. Reduced to the simplest form, the rule may be stated to be that the carrier is bound to exercise the strictest vigilance in receiving a passenger, conveying him to his destination and setting him down safely, that the means of conveyance employed and the circumstances of the case will permit.' 5 Am. & Eng. Ency. Law (2d Ed.) p. 558. In Baltimore & Ohio R. R. Co. v. Noell's Adm'r, 32 Grat. (Va.) 394, the following instruction was approved:...