Koch v. City of Seattle

• Citation: 113 Wash. 583,194 P. 572
• Decision Date: 03 January 1921
• Docket Number: 15946.
• Court: United States State Supreme Court of Washington
• Parties: KOCH v. CITY OF SEATTLE. NAKAMURA v. SAME.

194 P. 572

113 Wash. 583

KOCH v. CITY OF SEATTLE.

NAKAMURA v. SAME.

No. 15946.

Supreme Court of Washington

January 3, 1921

Department 1.

Appeal from Superior Court, King County; John S. Jurey, Judge.

Actions by Edward G. Koch and S. Nakamura against the City of Seattle. From judgments for plaintiffs, defendant appeals. Affirmed.

Walter F. Meier and Ewing D. Colvin, both of Seattle, for appellant.

Revelle & Revelle and Lucas C. Kells, all of Seattle, for respondents.

PARKER, J.

While these were separate actions and separate judgments were rendered therein, they were, by consent of all the parties tried together in the superior court for King county, sitting without a jury. The plaintiffs Koch and Nakamura each sought recovery of damages alleged to have been suffered at the same time as a result of the negligent operation of one of the city's street cars. The trial resulted in findings and judgments awarding damages to each of the plaintiffs, from which the city has appealed in each case to this court. The appeals by stipulation of all the parties are presented to us together upon a transcript of the pleadings and judgments in each case, and one statement of facts applicable to both cases.

The principal contention here made in behalf of the city is that the evidence does not warrant the rendering of judgments awarding recovery to either Koch or Nakamura, in that it fails to show any negligence on the part of the city's servant operating its street car, and also in that as to Koch the evidence shows that he, or rather his servant, was guilty of such contributory negligence that it became the proximate cause of the damages. The controlling facts as we think the trial court was warranted in viewing, and did view, them, may be summarized as follows: The damages in question, consisting of the injuries to the automobiles belonging to Koch and Nakamura, occurred on the west side of the roadway of Fourteenth Avenue Northeast, about 100 feet south of Forty-Seventh street, in Seattle. Fourteenth avenue runs north and south, while Forty-Seventh street crosses the avenue at right angles. The city maintains and operates on Fourteenth avenue a double-track street railway, the south-bound cars running upon the west track, and the north-bound cars running upon the east track. The distance between the west rail of the west track and the curb of the sidewalk is 13 feet. At the time in question there was a temporary sidewalk about 3 feet wide, outside the curb, extending from the south line of Forty-Seventh street southerly along and in the roadway on the west side of Fourteenth avenue for a distance of about 60 feet. This because of the inclosing of that portion of the permanent sidewalk to accommodate the construction of a new building there in progress. A short distance south from the south end of this temporary walk there was standing near the west curb an automobile, and a short distance further south there was standing the automobile belonging to Nakamura, in front of his grocery store, which is about 100 feet south of Forty-Seventh street. These automobiles were both parked in the usual proper manner parallel with and close to the curb and are not shown to have been there in violation of any traffic rules or regulations. The body of the street car such as the one here in question, overhangs the rails of the track on each side about 20 inches. It is thus apparent that while the space between the temporary walk and the west track would enable an automobile to be driven therein, the space between the two automobiles standing at the curb to the south of the temporary walk, and a street car upon the west track would not be sufficient to easily drive an automobile therein, without the probability of coming in contact which the automobiles or such situated street car.

On the day in question one Jones, a boy between 16 and 18 years of age, the employee of Koch, was driving the automobile belonging to Koch, delivering goods for him. Jones was evidently an experienced driver, though young. Just before the accident Jones was driving east on Forty-Seventh street, approaching Fourteenth avenue. When near the street intersection he slowed down, and probably came to a stop. Looking to the north to see if any street cars were approaching from that direction, he saw...