Leftridge v. City of Seattle

• Decision Date: 04 September 1924
• Docket Number: 18677.
• Citation: 228 P. 302,130 Wash. 541
• Court: Washington Supreme Court
• Parties: LEFTRIDGE et al. v. CITY OF SEATTLE.

228 P. 302

130 Wash. 541

LEFTRIDGE et al. v. CITY OF SEATTLE.

No. 18677.

Supreme Court of Washington

September 4, 1924

Department 1.

Appeal from Superior Court, King County; Ronald, Judge.

Action by Helen Leftridge and her husband against the City of Seattle, a municipal corporation. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Morris & Shipley and Paul S. Dubuar, all of Seattle, for appellants.

Thomas J. L. Kennedy and Geo. A. Meagher, both of Seattle, for respondent.

MACKINTOSH J.

The principal question for determination is whether the appellants' amended complaint states a cause of action.

It contains allegations that the respondent owns and operates a street car line along Twelfth Avenue South, in Seattle, and that on approaching Judkins street from the north Twelfth Avenue South curves to the west and then straightens out again in a southerly direction; that the car tracks on Twelfth Avenue South curve in the same manner as the street but to a somewhat lesser extent; that the respondent maintains a planking and a sidewalk on Twelfth Avenue South commencing at Judkins street and continuing thence northerly that the westerly portion of the planking to the west of the car tracks is used as a sidewalk, and was the only sidewalk on that portion of Twelfth Avenue South, and that all pedestrians were required to use it; that the respondent was negligent in maintaining the sidewalk and the planking used as a sidewalk too close to the west car tracks, so that the rear end of cars being operated on the curve, in leaving the curve, swing out a great distance over the sidewalk rendering dangerous the use of the sidewalk at the time that a street car is passing; that the rear end of cars going south would swing with great suddenness and without warning across the sidewalk; that the respondent's car which struck the appellant was so constructed that it swung over the sidewalk to a much greater distance than a car should do and for a much greater distance than the character of the curve would indicate to a person even familiar with such situations; that the respondent failed to give pedestrians on the sidewalk any warning indicating dangerous conditions; that the appellants were ignorant of the conditions. The complaint then alleges that on January 29, 1923, the appellant wife was walking north on the west side of Twelfth Avenue South along the sidewalk or planking maintained as a sidewalk, on a course parallel with the west car tracks, and that she was some 35 or 40 feet north of Judkins street and about 5 and 5 1/3 feet west of the west rail of the car track when the respondent's car operating on Twelfth Avenue South came towards her, leaving a clearance of several feet, except at the rear end, which, without any warning, swung over the sidewalk to so great a distance that it knocked the appellant violently to the ground. It is alleged that the respondent's motorman should have seen, and did see, the appellant, and that she was in a dangerous place where she would be hit when the rear end of the car should swing out, and that he should have seen, and did see, that she was unaware of her danger; and that by the use of reasonable care he could then have avoided the injury, but that, instead of exercising reasonable care, he carelessly and negligently failed to sound the gong or give any warning or slow down or stop the car, but continued to operate it until the rear end struck the appellant.

To the complaint an answer was made which contained the plea of contributory negligence. Respondent's objection to the introduction of any evidence was granted and judgment rendered for the respondent.

It will be noticed that in the complaint several allegations of negligence are made. One of these is that the operation of a street car in a situation such as is detailed in the complaint is negligent. It is unnecessary to discuss this phase of the case, however, for the reason that this court has already held that, as a matter of law, a pedestrian is guilty of contributory negligence who places himself in danger from the overhang of a car, and that ordinary prudence requires pedestrians to take notice that there is an overhang to an ordinary street car rounding a curve. Gannaway v. Puget Sound T. L. & P. Co., 77 Wash. 655, 138 P. 267. Under that decision the appellant is guilty of contributory negligence in not protecting himself against the overhang of a street car as it rounds a curve.

But this does not necessarily determine that the appellants' complaint states no cause of action. The complaint contains an allegation that this car which contacted with appellant was not an ordinary street car but swung over the sidewalk to a much greater extent than an ordinary car would and that the character of the curve would indicate, even to persons familiar with such matters. The appellant would therefore not be guilty of contributory negligence as a matter of law, even though she might be so guilty in failing to take heed of the fact that street cars, making turns, project their rear ends, as she would only have notice of what would ordinarily be done by an ordinary street car rounding this particular curve. If she can establish that this car was extraordinary or did not perform as one might ordinarily be expected to do, she has established a basis upon which recovery might be had.

There is another phase of negligence in the case--that of last clear chance. The complaint alleges further that the operator of the street car saw, or by the exercise of reasonable care should have seen, that the appellant was proceeding to a zone of danger. From the pleadings it is apparent that the appellant's negligence, if any, was continuous up to the time of the accident, and this raises a question about which some confusion has crept into our decisions as to whether a plaintiff may recover under the theory of last clear chance, where her negligence has not terminated at the time of the accident.

Going no further back into the decisions than to Mosso v Stanton Co., 75 Wash. 220, 134 P. 941, L. R. A. 1916A, 943, we find that case endeavored to clarify the last clear chance rule and define two separate conditions under which it was applicable, and the rule is announced as (1) that, where the defendant actually saw the peril of a traveler on the highway, and should have appreciated the danger and failed to exercise reasonable care to avoid injury, such failure made the defendant liable, although the plaintiff's negligence may have continued up to the instant of the injury, but (2) that, where the defendant did not actually see...