Keefe v. Seattle Elec. Co.

• Decision Date: 02 November 1909
• Citation: Keefe v. Seattle Elec. Co., 55 Wash. 448, 104 P. 774 (Wash. 1909)
• Parties: KEEFE v. SEATTLE ELECTRIC CO.
• Court: Washington Supreme Court

104 P. 774

55 Wash. 448

KEEFE v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

November 2, 1909

Department 1.Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Thomas Keefe against the Seattle Electric Company.Judgment for plaintiff, and defendant appeals.Affirmed.

James B. Howe and H. S. Elliott, for appellant.

E. B Cresap and Higgins, Hall & Halverstadt, for respondent.

CHADWICK J.

On January 23, 1907, defendant, who was a driver of an express wagon in the city of Seattle, attempted to drive east across First avenue at the intersection of King street.Appellant maintains and operates a double track of street railway along the full length of First avenue, which is one of the principal business streets of the city, and is used by a large number of pedestrians and vehicles.The east track was the outbound track, and the appellant had nearly crossed the west track on which the car was approaching, when his progress was impeded by a string of give or six dirt wagons passing on the east side of First avenue.As respondent approached the crossing, he saw the car at Jackson street one block north, and it was about a half a block away when he drove on the track.He could also see the approaching dirt wagons.The conductor and motorman estimated the speed at which the car was running at from three to four miles an hour.While the wagon was standing on the track, the car collided with it, and respondent was thrown on to the fender of the car, from which he suffered an injury.From an adverse verdict the company has appealed, alleging that defendant was guilty of contributory negligence.

The following cases are relied upon: Christensen v. Union Trunk Line,6 Wash. 75, 32 P. 1018;Criss v. Seattle Electric Company,38 Wash. 320, 80 P. 525;Coats v. Seattle Electric Company,39 Wash. 386, 81 P. 830;Davis v. Coeur d'Alene Ry. Co., 47 Wash. 301, 91 P. 839.While it is true that question may be made from each of these cases that would seem to sustain appellant's contention, we cannot overlook the fact that in all cases of this character the law must be drawn to fit the circumstances of each particular case.The court had occasion to review and explain these decisions in a recent case wherein the facts are almost identical with the case at bar--Snowdell v. Seattle, 103 P. 3--the only material difference being that in that case the car was approaching on an upgrade, while here there was a slight downgrade.It was there held: 'We cannot say as a matter of law, as contended for by appellant, that a person approaching a street railway crossing on a busy street in a populous city, seeing a car approaching on an upgrade at the ordinary rate of speed, half a block away, is guilty of contributory negligence to such an extent as to bar his recovery in assuming he can make the crossing in safety.Whether such was the act of an ordinarily prudent man under like circumstances was for the jury, and their findings upon that question will not, under circumstances such as these, be disturbed.'It is true that the motorman and others testified that the car was beyond his control because of the slippery condition of the track, but there was a conflict of evidence upon this question, and the effect of the verdict is that the car might have been stopped before the collision.

While the evidence might well have justified a verdict against respondent, the jury has foreclosed the right of appellant to assert that the negligence of the motorman, who saw respondent in his then situation and more than a half a block away, was not the proximate cause of the injury.Appellant assumes that, because respondent stopped on the track, he was negligent, or at least that the negligence of the parties being equal, he cannot recover.Negligence is a relative question, and the conduct of respondent must be measured with the line of ordinary prudence.As intimated in the Snowdell Case, what might be negligence where traffic was light or in a rural district or in the nighttime cannot be made the standard where the accident occurs in a crowded city street in broad daylight.The facts declare the law in such cases.'Ex facto jus oritur.'In cases such as we have here the proximity or remoteness of the car, its speed the time of day, the condition of the track, the clearance or congestion of the street are all circumstances to be considered; for, if the rule was that a party had no right to drive on or over a street railway track if he could see a car approaching, he could never attempt to cross a track in a crowded part of the city.This rule would operate to deprive the individual and the driver of a vehicle of his equal right to the...