McKay v. Seattle Elec. Co.

• Decision Date: 01 November 1913
• Citation: 76 Wash. 257,136 P. 134
• Court: Washington Supreme Court
• Parties: McKAY v. SEATTLE ELECTRIC CO.

136 P. 134

76 Wash. 257

McKAY v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

November 1, 1913

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by A. L. McKay against the Seattle Electric Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

James B. Howe and A. J. Falknor, both of Seattle for appellant.

Revelle Revelle & Revelle, of Seattle, for respondent.

CROW C.J.

Action by A. L. McKay against the Seattle Electric Company, a corporation, to recover damages for personal injuries. From a verdict and judgment in plaintiff's favor, defendant has appealed.

Respondent alleged that he was injured on one of appellant's 'pay as you enter' street cars by having the gate closed on his foot as he was alighting, which caused him to be thrown to the street and injured. The appellant operates an electric street railway system in the city of Seattle, a portion thereof being known as the Eastlake line, running from the business portion of the city past the University district to Cowen and Ravenna Parks. Before reaching the University district the cars run easterly upon North Fortieth street for some eight or ten blocks, crossing intersecting streets as follows: Eleventh avenue N. E., Twelfth avenue N E., Brooklyn avenue, and Fourteenth avenue N.E. The cars then run on Fourteenth avenue N.E. to their destination. On May 11, 1911, respondent was living on Brooklyn avenue about one block south of its intersection with North Fortieth street. He contends that about 11:30 o'clock p. m. on that date he and one J. O. Craven met in the business portion of the city and agreed to go home together; that they went into a saloon, had a glass of beer and cigar; then walked to Third avenue and Union street to board the Eastlake car; that two cars which passed were overloaded, and they could not obtain passage; that they continued walking east on Union street to Sixth avenue, where they boarded an Eastlake car; that Craven alighted at Twelfth avenue N. E., one block short of Brooklyn avenue, respondent's destination; that respondent informed the conductor he desired to alight at Brooklyn avenue; that the necessary signal was given; that just as respondent had his left foot on the lower or last step of the car, and was taking his right foot off, and was about to alight, the conductor closed the gate on his foot, causing him to be thrown to the street and injured. It is conceded that the accident, if it occurred at all, occurred upon a car operated by one Derry as motorman and one Warner as conductor. The trip sheet of the company, which was introduced in evidence, shows that their car left its southern terminus, some 14 blocks south of Union street, at 11:30 p. m., and again at 1:00 a. m. The car on the latter trip being known as the 'Owl' car. Appellant denies that respondent was injured by falling or being thrown from the car, but contends that he was so intoxicated and unable to care for himself that in wandering around after alighting from the car he fell upon the paved street and was injured. Respondent testified that as he was thrown from the car he was stunned and became unconscious; that when his consciousness was restored he endeavored to and did remove himself from the tracks, but laid on the street for an hour or an hour and a half, during all of which time he was conscious; that he saw two cars pass going north and three pass going south; that he 'hollered' to each of them as loud as he could; that he finally saw a policeman a block away, to whom he also 'hollered'; that the policeman picked him up, carried him to a nearby store, and later helped him to his home. The motorman and conductor testified that plaintiff was intoxicated when he boarded and also when he left the car. The motorman testified that he remembered respondent because respondent asked him if the car went to Brooklyn avenue, and attempted to board it at the front end. The conductor and motorman further testified that on their return trip they saw respondent staggering in the street near the corner of Brooklyn avenue; that their car was stopped; that respondent told them he was lost; and that the conductor directed him to his home. The motorman and conductor of another car testified that they also saw respondent staggering along Brooklyn avenue about 1:40 a. m., as though he was lost. The police officer testified that he thought respondent was intoxicated, and that he so stated in his report to police head-quarters. Respondent denied his intoxication, as did his companion Craven and one other witness who saw him after the accident; but he and Craven admitted having taken a drink together, and respondent admitted having taken more than one drink.

There is no question but that respondent was injured in some manner on the night of May 11th or early on the morning of May 12th in the vicinity of Brooklyn avenue and North Fortieth street. He insists that he was injured by being thrown from the car in the manner above stated, while appellant contends that he, in some manner, received the injury after he had alighted from the car, and while he was wandering around in an intoxicated, lost, and dazed condition. The only evidence produced on behalf of respondent in support of his contention that he was thrown from the car was his own testimony. In his version of the accident itself he is not corroborated by any other witness. On the contrary, he is contradicted by the testimony of the witnesses who saw him leave the car. Therefore it became a vital issue to determine whether respondent was intoxicated when he left the car, and, if so, whether his intoxication was such as to impair his consciousness and his recollection of the incidents to which he testified.

Appellant's first contention is that the trial court erred in denying its motion for a new trial on the ground of insufficiency of the evidence. There was a sharp conflict of evidence as to whether respondent was intoxicated, and whether he was thrown from the car and was injured in the manner claimed by him. Conceding that the preponderance of the evidence as disclosed by the record may seem to be with appellant, yet both of these propositions were questions of fact for the consideration of the jury. There was evidence to sustain the verdict, which was approved by the trial judge. Under uniform rulings of this court, we conclude that we would not be warranted in disturbing the ruling of the trial judge that the evidence was sufficient to sustain the verdict.

It is contended that the trial court erred in excluding the testimony of one G. A....