Locke v. Puget Sound Intern. Ry. & Power Co.

• Citation: 171 P. 242,100 Wash. 432
• Decision Date: 02 March 1918
• Docket Number: 14055.
• Court: United States State Supreme Court of Washington
• Parties: LOCKE v. PUGET SOUND INTERNATIONAL RY. & POWER CO. et al.

171 P. 242

100 Wash. 432

LOCKE v. PUGET SOUND INTERNATIONAL RY. & POWER CO. et al.

No. 14055.

Supreme Court of Washington

March 2, 1918

Department 2. Appeal from Superior Court, Snohomish County; Everett Smith, Judge.

Action by D. W. Locke against the Puget Sound International Railway & Power Company and another. From a judgment for plaintiff defendants appeal. Affirmed.

Cooley, Horan & Mulvihill, of Everett, for appellants.

Black &amp Black and E. C. Dailey, all of Everett, for respondent.

CHADWICK J.

At about 4 o'clock on the afternoon of the 27th day of March, 1915, respondent was struck by a car operated by appellant on the streets of Everett. The accident occurred on Colby avenue, a principal thoroughfare running north and south. Colby avenue intersects Hewitt avenue, the principal business street in the city. The Colby avenue cars have their southern terminus at Hewitt avenue. The first street north of Hewitt avenue is California street. From California street north to the place of the accident the grade is practically level. On the day mentioned, respondent, who is lame and quite hard of hearing, had gone to the office of Doctor Hathaway on the west side of Colby avenue. He left his vehicle, a tricycle, in front of the doctor's residence. After his errand had been performed, he mounted his tricycle and, after looking to the south and seeing no car approaching and no vehicles other than some automobiles, he started diagonally across Colby avenue, intending to put himself on the east side of the car tracks, or on the right-hand side of the street.

The jury could have found that the car started from Hewitt avenue north on Colby street at about the time respondent left the curb in front of the doctor's office. The motorman testified that he saw respondent leave the curb in front of the doctor's office when he started the car at California street. The street car was stopped at California street to take on a passenger. The motorman sounded his gong as he started the car. As the car moved north he appreciated the fact that respondent was intent upon crossing the track. He sounded his gong almost continuously up to the time respondent was struck. The accident occurred approximately 165 feet north of California street. Respondent's tricycle was struck by the lefthand corner of the car. The car was stopped by setting the brakes hard in a distance probably equal to, or little more than, its length, although the jury would have been justified in finding a greater distance.

The assignments of error all go to the legal sufficiency of the evidence to sustain the verdict, it being appellant's contention that respondent was so regardless of his own safety that he is to be charged with contributory negligence as a matter of law, and although appellant may have been negligent, the negligence of respondent was concurring and continuing up to the time of the accident. Appellant admits that respondent suffered from a certain degree of deafness, but contends that there is no evidence that the motorman knew of his infirmity. The position of appellant is that there was no duty on the part of the motorman to take care of respondent's safety until respondent actually came into the zone of danger, which is fixed as the car track, or so near the car track that the car would strike any object in its way. This contention is based upon the assumption that there was a primary duty on the part of the respondent, knowing of the existence of the car track and the possibility of cars approaching at any time, to take account of his own safety to the extent of looking before putting himself in a position where he might be injured.

The facts in this case are such that appellant cannot avail himself of the principles relied on. The duty of the motorman began at the very moment that he saw respondent moving into a situation of peril; that moment is fixed by his own testimony when he was starting the car at California street; or, in other words, the duty of the motorman began at the time he began to perform it. He sounded his gong from the time he saw respondent until the car struck him. Whether the mere ringing of the gong, which it is conceded did not attact respondent's attention, was a sufficient performance of duty under all the facts was a question for the jury.

In Beeman v. Puget Sound Traction, L. & P. Co., 79 Wash. 137, 139 P. 1087, speaking of the duty of a motorman on a street car--and it will be borne in mind that the duties of the traveler and the motorman are reciprocal--we quoted from Johnson v. Washington Water Power Co., 73 Wash. 616, 132 P. 392:

'A motorman has the right to assume that a person on the street will exercise such care to avoid injury, and he may lawfully act on that assumption, until the conduct of the person warns him to the contrary.'

But the continued movement of a person toward a place of danger after a warning sound is notice that he is unaware of his peril, and is enough to break the reciprocal balance of duty, and, if it can be said that he had the time to do so, puts upon the motorman the positive duty of avoiding an accident.

In Budman v. Seattle Elec. Co., 61 Wash. 281, 112 P. 356, the motorman saw the plaintiff approaching the train when distant about two car lengths. He let the car drift and rang his gong in time to warn plaintiff. He supposed plaintiff knew the car was coming. The evidence did not show that the plaintiff actually knew of the existence of the car. A verdict of the jury that this did not meet the measure of the company's duty was sustained. So in Tecker v. Seattle, Renton & Southern R. Co., 60 Wash. 570, 111 P. 791, Ann. Cas. 1912B, 842:

'The motorman testified that, when he first observed the boy, he was about 15 feet from the track, and in a place of safety, 'if he had stopped'; that he kept ringing the gong, but that the boy 'kept going right along,' and that the boy 'was about 15 feet of the car, running across through the street over the crossing.''

We said:

'If, by the exercise of proper vigilance, the motorman could have seen the child in time to stop the car and avoid striking him, it was his duty to do so; and if, when he saw the boy, his conduct indicated that he was intending to cross the track, and that he had not seen the car or heard the signals, if any were given, if was the duty of the motorman to use every effort to stop the car.'

In each of these cases, the court noticed that the collateral facts of age and mental alertness were proper items to be considered by the jury. In the case at bar, respondent's infirmity was a probative fact when considered in the light of all the evidence. We think the case falls naturally within the doctrine of the last clear chance, notwithstanding counsel's contention 'that if the negligence of the appellant was merely concurrent with that of respondent, and that respondent's negligence continued up to the time of the accident and was concurrent with that of the appellant, the doctrine of last clear chance has no application.'

Much of the confusion attending the doctrine of the last clear chance has come from a seeming belief on the part of many judges and text-writers that it is in itself a principle of law and subject to arbitrary definition, whereas it is no more than a judicial exception to established principles, resting in fact and not in law. The chance to avoid an injury is a relative question to be resolved solely by reference to the facts of each particular case. If the one party knows of the peril of the other, although brought about by that other's negligence, in time to avoid injuring him, he is at once put to a degree of care commensurate with the present situation of the parties.

The doctrine of last clear chance does not abrogate any of the rules of proximate cause; it rather affirms them. It is a rule of convenience as well as necessity, to which the courts have resorted in all proper cases where contributory negligence is pleaded as a defense, and a jury is called upon to find the proximate cause. The rule as we understand it to be is laid down in Nellis on Street Railways.

'Contributory negligence of a party injured will not defeat his action, if the defendant or its servants might by reasonable care and prudence have discovered his peril in time to save him, and thus have avoided the consequences of the injured party's negligence. In such a case the plaintiff's alleged contributory negligence could not be said to be the direct and proximate cause of the accident, but the defendant's negligence would be the proximate cause and would thus render it liable.' Nellis on Street Railways (2d Ed.) § 462.

The argument of counsel is not unlike that made in the case of Mosso v. Stanton Company, 75 Wash. 220, 134 P. 941, L. R. A. 1916A, 943, where it is said:

'The appellant cites certain authorities, most

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