Mitchell v. Tacoma Ry. & Motor Co.

• Decision Date: 11 June 1894
• Citation: 37 P. 341,9 Wash. 120
• Court: Washington Supreme Court
• Parties: MITCHELL v. TACOMA RAILWAY & MOTOR CO.

37 P. 341

9 Wash. 120

MITCHELL v. TACOMA RAILWAY & MOTOR CO.

Supreme Court of Washington

June 11, 1894

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by Edna L. Mitchell, by her guardian ad litem, Emily H Mitchell, against the Tacoma Railway & Motor Company, to recover for personal injuries. From a judgment for plaintiff defendant appeals. Reversed.

The following are defendant's requests for instructions numbered 6, 9, 16, 17, 19, 20, and 21: "If you should find that Edna Mitchell saw the car approaching, but she got upon the track, believing she had sufficient time to cross the same before the car would reach her, the accident was simply the result of an error of judgment on her part, and she was guilty of contributory negligence, and cannot recover." "If you find that the gripman was sitting down while the girl was crossing Tacoma avenue, you are instructed that this was no evidence of negligence on the part of defendant. If you should find that the gripman was sitting down after the car had crossed Tacoma avenue and had started down Thirteenth street, below the crossing on Tacoma avenue, no recovery could be had against the defendant, even though you should further find that the girl Edna Mitchell while at play or sport below the crossing on Tacoma avenue got upon the track in front of the car, and was immediately afterwards struck by the moving car, and was injured." "If the jury finds from the evidence that the accident occurred on Thirteenth street, below the crossing between Tacoma avenue and Thirteenth street, and that the girl Edna Mitchell was first struck by the car below the usual place of crossing for pedestrians between Tacoma avenue and Thirteenth street, and at a place where pedestrians do not usually cross the street, and at a place where there is no cross walk, plaintiff cannot recover, she being guilty of contributory negligence in being upon the track at such point." "If you find that the girl Edna Mitchell was using a part of the street for sport or play, and while so using the street got upon the track of the defendant company, in front of a moving car, plaintiff cannot recover." "There is no evidence in this case in any way tending to show that the brakes and grip, or either of them, upon the car which struck Edna Mitchell, were, at the time, out of repair, and you cannot find any negligence of the defendant on the ground that the brakes or grip, or either of them, were out of repair, and were not in good condition." "There is no evidence in this case tending to show that the defendant negligently or carelessly omitted its duty to have the car which struck Edna Mitchell so constructed and equipped that it could be stopped, in case of an accident, within reasonable time; and, in ascertaining whether the defendant was guilty of negligence, you are instructed that you cannot consider the question as to whether the car was properly constructed or equipped, or so constructed or equipped that it could be stopped within a shorter distance than that in which it was stopped." "You are also instructed that you cannot find any negligence against this defendant for any act occurring after the girl was first struck. After the girl Edna Mitchell was struck by the car, the undisputed evidence shows that the car was stopped as soon as it could be done by the gripman."

Crowley & Sullivan, for appellant.

Ben Sheeks and F. G. Merrill, for respondent.

ANDERS J.

On April 27, 1892, the appellant was the owner of a cable-car line, and was operating the same, on certain streets in the city of Tacoma, one of which was Thirteenth street. It appears that Thirteenth street crosses Tacoma avenue on a level, but from the eastern side of the avenue it suddenly descends, causing a steep grade upon the line of the railway at that place. On the day above mentioned, the respondent, a girl of the age of eight years and four months, while on Thirteenth street, at or below the crossing on Tacoma avenue, was struck, knocked down, and shoved along the track for some distance by one of appellant's cars which was passing eastward down Thirteenth street, and thereby severely injured. Subsequently this action was instituted to recover damages for the injuries thus received, and which the plaintiff claimed were caused by the negligence of the defendant. The alleged negligence is set forth in the complaint as follows: That on the 27th day of April, A. D. 1892, the plaintiff was traveling on said Thirteenth street, where the said street and the said cable line crossed Tacoma avenue, and, while plaintiff was on said street, the defendant carelessly and negligently caused one of its cable cars to pass rapidly over its said track along said street, and negligently and carelessly omitted its duty, while passing said crossing, to give any signal by ringing the bell, or to keep watch for persons on the street, and negligently and carelessly omitted its duty to have its said car so constructed, equipped, controlled, and managed that it could be stopped, in case of a possible accident, within a reasonable distance; that, in consequence thereof, the car struck the said plaintiff, and knocked her down, and dragged her along its track for a distance of 68 feet before the said car was or could be stopped, whereby plaintiff's head and face were bruised, injured, permanently disfigured, and other serious injuries inflicted on her body. These averments of the complaint were denied in the answer of the defendant, and the defendant affirmatively alleged that on said date the plaintiff carelessly and negligently, at a point on said Thirteenth street where the same is very steep, and the grade heavy, ran in front of the cable car of defendant then being operated upon its said line of street railway, and was struck by said car, without any fault or negligence on the part of the defendant or its servants, agents, and employés, and that defendant did not and could not see plaintiff in time to stop said cable car on said grade and prevent the same from striking her; and averred that the plaintiff, Edna L. Mitchell, darted onto said track in front of said car suddenly, and while it was so close to her-and while the car was in motion-that the same could not be stopped in time to avoid striking her. It was further alleged in the answer that the injuries complained of were occasioned solely by reason of the carelessness and negligence of the plaintiff, and the carelessness and negligence of her parents and guardians in allowing her to play on said street, and without any fault, negligence, or want of care on the part of the defendant.

A trial was had upon the issues thus formed by the pleadings, and a verdict was returned by the jury in favor of the plaintiff. A motion for a new trial was duly filed by the defendant, and denied by the court, whereupon judgment was entered upon the verdict against the defendant for the sum of $12,000. At the close of the testimony, counsel for the defendant requested the court to instruct the jury to return a verdict for the defendant, which request the court refused, and this ruling of the court is assigned as error. It was a disputed question at the trial whether, when the plaintiff was struck by defendant's car, she was on the cross walk on Tacoma avenue, or on Thirteenth street below the crossing provided for pedestrians. Some of the witnesses thought the accident occurred at the former place, while others were equally positive that it happened at the latter. But there is no dispute that the respondent, when struck, was standing on or near the car track, and was knocked down in front of the car and that a portion of the car passed over her before it was stopped. The testimony discloses that the car first struck the respondent either upon her back or her side, but when she was extricated from beneath the car it was discovered that her skull was fractured, and one side of her face very seriously mangled and torn, and that there was a pool of blood upon the track about seven or eight feet above where she was picked up. It is, therefore, almost certain that the principal injuries received by the respondent were not inflicted until the car had moved some distance after first striking her. According to the testimony of the conductor, the car was stopped 54 feet below the crown of the hill, or lower side of Tacoma avenue, and 28 feet from the point where it first came in contact with the respondent. And Harvey Johnson, one of the respondent's witnesses, who was on the sidewalk on Thirteenth street just below the avenue, and who started down the hill at the same time the car did, says he saw the occurrence, and that the girl was struck by the car on Thirteenth street, about 25 or 30 feet below the crossing. On the other hand, the respondent claims that she was on the crossing on Tacoma avenue when she was struck, and in this she is corroborated by two other witnesses, who saw the collision, but were at the time a considerable distance from where it occurred. The exact place of the accident, however, is material only in so far as it may affect the question of whether or not the appellant was exercising due care and caution at the time it happened. The care required of those operating street cars is such as ordinarily cautious and prudent men would exercise under like conditions and circumstances, and is proportioned to the danger to be guarded against, and the fatal consequences which are likely to result if it is omitted. And hence a greater degree of vigilance and caution is exacted at street crossings, and places known to be frequented by persons generally, and especially by children, than at places where danger of injury is not so apparent. Now, it is contended, on behalf of the appellant, that, no...