A. L. Palmer Inv. Corp. v. City of Seattle

• Decision Date: 27 March 1931
• Docket Number: 22747.
• Court: Washington Supreme Court
• Parties: A. L. PALMER INV. CORPORATION v. CITY OF SEATTLE et al.

297 P. 783

161 Wash. 460

A. L. PALMER INV. CORPORATION v. CITY OF SEATTLE et al.

No. 22747.

Supreme Court of Washington

March 27, 1931

Department 2.

Appeal from Superior Court, King County; Malcolm Douglas, Judge.

Action by the A. L. Palmer Investment Corporation against the City of Seattle and S. A. Moceri. Judgment for plaintiff against the City of Seattle, and judgment for defendant Moceri, and the City of Seattle appeals.

Reversed with directions.

A. C. Van Soelen and C. C. McCullough, both of Seattle, for appellant.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondent.

TOLMAN C.J.

Respondent as plaintiff, brought this action to recover for damages caused to its building at the northeast corner of Ballard avenue and Dock place in the city of Seattle by a collision between a street car owned and operated by the city of Seattle in its proprietary capacity and a truck owned and operated by the defendant Moceri, which collision caused the truck to be forced against and into the building, thus inflicting the damage complained of.

The case was tried to a jury, resulting in a verdict against the city and in favor of the defendant Moceri, releasing him from liability. From a judgment on the verdict, the city has appealed.

There was testimony to the effect that the Moceri truck, heavily laden, was proceeding easterly on Dock place. As the driver approached or entered the intersection, he saw on his right a street car coming from the south and proceeding toward him in a northerly direction at an estimated distance of two hundred feet. The driver testified, in substance, that he thought he had ample time to cross the intersection, and would have done so if the street car had been moving at a normal rate of speed.

This and other evidence in the case presents the issue which was discussed in Martin v. Hadenfeldt, 157 Wash. 563 289 P. 533, strengthened by the additional right of way given to street cars by the city ordinance. The court gave to the jury the following instructions, to all of which the city duly excepted:

'No. 5. You are instructed that under the provisions of Section 54 of Ordinance No. 53223, of the city of Seattle, which was in full force and effect on the 2d day of August, 1929, street cars were entitled to the track and to the right of way thereon at all times, except as to certain vehicles not involved in this action.

'The term 'right of way,' however, is a relative term only, and if you believe from the evidence that the truck was in the intersection of Ballard avenue and Dock place and was proceeding to cross the intersection before the street car arrived at the intersection, and without any negligence on the part of the truck driver, then it was the duty of the operator of the street car to slacken the speed of the car or to stop it, if in the exercise of ordinary care he could do so, in order to avoid striking said truck.'

'No 7. You are instructed that the...