Nopson v. City of Seattle

• Decision Date: 16 June 1949
• Docket Number: 30690.
• Citation: 207 P.2d 674,33 Wn.2d 772
• Parties: NOPSON v. CITY OF SEATTLE.
• Court: Washington Supreme Court

207 P.2d 674

33 Wn.2d 772

NOPSON v. CITY OF SEATTLE.

No. 30690.

Supreme Court of Washington, En Banc.

June 16, 1949

Action by Bergit Nopson against the City of Seattle to recover for injuries sustained while plaintiff was a passenger on a bus operated by defendant. From an order granting defendant's motion for a new trial after verdict for plaintiff, plaintiff appeals.

Affirmed.

HILL MALLERY and GRADY, JJ., dissenting.

Appeal from Superior Court, King County; James T Lawler, judge.

Erle W Horswill, Seattle, for appellant.

A. C. Van Soelen, Arthur Schramm, Seattle, for respondent.

JEFFERS Chief Justice.

This is an action for personal injuries instituted by Bergit Nopson against the city of Seattle. It is alleged in paragraph 3 of the complaint:

'That on or about the 7th day of November, 1946, plaintiff was riding as a passenger on a bus operated by said defendant and driven by one of its employees. That near the intersection of 3rd avenue and Pine street said bus came to a sudden and violent stop and without warning throwing the plaintiff, all this being through the negligence of the defendant, its agents, and employees.'

The acts of negligence with which defendant is charged, as set out in paragraph 4, are as follows:

'1. In traveling at an excessive rate of speed to wit: in excess of 25 miles per hour.

'2. In failing to keep said bus under control.

'3. In failing to keep a lookout for other vehicles using street.

'4. Making an abrupt violent stop when he knew or should have known that the plaintiff and other passengers were standing in the aisle.'

Defendant answered the complaint, admitting that at the time and place referred to in the complaint plaintiff was riding as a passenger on a bus operated by the defendant. The answer further admitted that near the intersection of Third avenue and Pine street the bus came to a sudden stop, but denied that such stop occurred through the negligence of defendant or its agent, and alleged that the stop was made to avoid collision with an automobile which swerved from the adjacent traffic lane immediately into the path of defendant's bus, and that the sudden stop was necessary to avoid collision with the automobile, and to avoid damage to all of the passengers in the bus. The answer denied all allegations of negligence contained in paragraph 4 of the complaint.

The cause came on for trial on January 14, 1948, Before the court and jury on the pleadings above referred to, and thereafter, on January 15th, the jury returned a verdict in favor of plaintiff in the sum of two thousand seven hundred fifty dollars. Defendant timely filed a motion for judgment notwithstanding the verdict, and an alternative motion for new trial. On April 7, 1948, the court entered an order denying defendant's motion for judgment notwithstanding the verdict, and granting the motion for new trial, upon the following specific ground:

'That an error was committed by the court in submitting instruction No. 8 to the jury, being an instruction on res ipsa loquitur.'

Plaintiff has appealed from the order granting defendant's motion for a new trial.

The assignments of error are (1) in granting respondent's motion for new trial, and (2) in failing to enter judgment for appellant on the verdict.

Appellant's contention is that her evidence was sufficient to raise the res ipsa loquitur doctrine, and therefore the court properly gave instruction No. 8; that the court erred in granting a new trial because of the submission to the jury of the instruction on res ipsa loquitur.

The following is the relevant testimony introduced by appellant (plaintiff below) in her case in chief. At the time of this accident, Mrs. Nopson was eighty-four years of age. On the day of the accident, appellant and her daughter, Mrs. Floyd Miller, had boarded a city bus at Sixty-second and Meridian. They were going down town to meet two other daughters of appellant at the corner of Third avenue and Pine street. As the bus turned from Stewart street south on Third avenue, the trolley became disconnected and the bus stopped. At this time appellant and her daughter were seated, and they did not get up until after the bus had started. Mrs. Miller had given the signal indicating that she desired to leave the bus at Third avenue and Pine street, and after the trolley had been adjusted and the bus started, Mrs. Miller and appellant both left their seats and approached the back door of the bus for the purpose of alighting at Third and Pine.

It is not too clear at just what point the bus came to a sudden stop, but apparently it was just a short distance Before it reached the intersection of Third and Pine. At this time Mrs. Miller was standing on the top step, and appellant was standing in the aisle, holding on to the hand rail on the top of the seats on either side of the aisle. We quote from appellant's testimony relative to this stop:

'Q. I say, what kind of a stop was this that the bus made when it got down--A. Oh, it stopped just terribly fast, just like a shot.

'Q. What happened to you? A. I fell backwards in the aisle. I didn't know. Somebody came and picked me up. * * *

'Q. What happened then, Mrs. Nopson, after that? After you were down on the floor what was done? A. Somebody come and picked me up. I tried to get up, but I couldn't. Somebody came and picked me up and helped me up there.'

Mrs. Nopson was subsequently taken off the bus and taken to the Seattle General Hospital.

We quote from Mrs. Miller's testimony relative to this stop:

'Q. After he got the trolley poles on, what did the bus driver do? A. Well, jumped on the bus and started up at such a great speed and continued that way until he got nearly to Third and Pine where all of a sudden he stopped with the most terrible jolt I have ever experienced in my life, and I looked up and I didn't see anything in front of the bus at all.

'Q. Let me stop you there. When you felt this jolt, did you look toward the front of the bus? A. Well, I looked to see why he had stopped at such a jolt.

'Q. Did you look toward the front of the bus? A. Yes.

'Q. Was there anything when you looked there in the way of the bus or between the bus and the corner? A. I didn't see anything.

'Q. In the lane of traffic it was traveling in? A. I didn't see anything.'

Mrs. Miller testified further that the only thing which prevented her from falling was that she was standing on the first step and holding with both hands to the railing which extended across the seat.

Josephine Reece was called as a witness for appellant, and testified that she was on the bus involved in this action on November 7, 1946; that she and a friend, Mrs. Bulman, were going to get off the bus at Third and Pine; that she had never seen Mrs. Nopson prior to the accident here involved; that she had not paid much attention to the way the bus was being driven until after it turned south on Third avenue; that just Before the bus reached the intersection of Pine street, it made a very sudden stop; that prior to this stop it had been going pretty fast down Third avenue; that just prior to the sudden stop to which the witness referred, she was gripping the seat in front of her.

'Q. What happened very shortly after that? A. Well, this sudden stop of the bus.

'Q. I see. And what happened to you when the bus made that sudden stop? A. It threw me forward onto my--I was holding the front of the seat, and it threw my body, the weight of my body onto my wrist and sprained that wrist; that is, it felt like is was sprained. It was very very painful.'

This witness further testified that she saw Mrs. Nopson fall; that after the fall she was lying on the floor, and several people helped her to her feet and put her in her seat.

Mrs. Arthur Bulman, referred to in Mrs. Reece's testimony, was also called as a witness by appellant, and testified that she was on the bus the day of the accident. She stated that it was a very rainy day; that it was raining when they got on the bus, and was raining at the time it stopped.

'Q. All right. Now, do you recall rounding the turn at Third and Stewart on that day? A. Yes, I do.

'Q. Do you remember anything unusual that happened on that day as you were rounding the turn? A. Yes, I do. The trolley came off.

'Q. Did the bus stop as soon as the trolley came off or not? A. No. I think we coasted, just cleared the corner. * * *

'Q. What happened then, Mrs. Bulman? Did the trolleyman get out and put the trolley back on? A. Yes, and then got back on the bus.

'Q. Let me interrupt you for a minute. Were you and Mrs. Reece sitting together? A. We were sitting together.

'Q. In what seat on the bus were you sitting, approximately? A. I think it was the second from the last, next to--not the one nearest the rear door, but the one ahead of that.

'Q. I see. You mean the second one in front, to the front from the rear door? A. on the right, yes.

'Q. Now, did you notice anything about the bus starting up on that occasion? A. Well, it started up real fast. * * *

'Q. What was the nature of the stop that occurred? A. It was very sudden.

'Q. Did it have any effect on you as you were sitting in the bus? A. Yes. I was thrown forward in the seat.

'Q. Do you know what effect, if any, it had on Mrs. Reece's body? A. Yes. She had her hand up to protect herself and she hurt her wrist.

'Q. What did you do immediately after you felt these brakes being applied? A. I think I glanced up out of the window, front window.

'Q. The which window? A. The front window.

'Q. I see, and as you glanced out of the front window, did you see anything in front of the bus? A. No, sir.

'Q. Did you have--from the sitting position there as you were can you see out of that front window? A. Fairly well, I think....