Poland v. City of Seattle

• Decision Date: 16 August 1939
• Docket Number: 27490.
• Citation: 200 Wash. 208,93 P.2d 379
• Parties: POLAND v. CITY OF SEATTLE.
• Court: Washington Supreme Court

93 P.2d 379

200 Wash. 208

POLAND v. CITY OF SEATTLE.

No. 27490.

Supreme Court of Washington

August 16, 1939

Department 2.

Action by H. O. Poland against City of Seattle, a municipal corporation, for damages for injuries sustained when struck by street car. From a judgment for the plaintiff, defendant appeals.

Reversed with instructions to dismiss action.

BLAKE C.J., dissenting.

Appeal from Superior Court, King County; Robert M. Jones, judge.

A. C Van Soelen, Corp. Counsel, and John A. Logan, Asst. Corp. Counsel, both of Seattle, for appellant.

Bailey, Heussy & Clarke and Paul Lemargie, all of Seattle, for defendant in error.

SIMPSON, Justice.

Plaintiff instituted this action to recover compensation for personal injuries sustained by him when he was struck by a Seattle street car.

The charges of negligence on the part of the motorman, who was in charge of the operation of the street car at the time of the injury, are that he was operating the car without watching for traffic in the front thereof and at a dangerous and excessive rate of speed, in excess of thirty-five miles per hour; that the front lights of the street car were out; that he failed and neglected to apply the brakes or to sound any warning when he saw or should have seen plaintiff in front of the car; and further that he neglected to operate the street car carefully and prudently, or to accord the users of the crosswalks their rights.

Defendant denied the charges of negligence and, by way of affirmative defense, alleged that plaintiff's damages, if any, were caused and contributed to by his own carelessness and negligence.

The case was tried to a jury and resulted in a verdict in favor of plaintiff.

At the close of plaintiff's case defendant moved for a non-suit. A motion for a directed verdict was also made at the proper time. After a verdict had been returned, defendant moved for a judgment notwithstanding the verdict and, without waiving that motion in the event it were denied, moved for a new trial. The motions were denied, and judgment was entered in favor of plaintiff. The city appeals.

The facts most favorable to plaintiff may be summarized as follows: Appellant owns and operates a double track street railway system, a part of which runs in a northerly and southerly direction along the west shore of Lake Union. Westlake Avenue proper is physically separated from, but is immediately adjacent to the area occupied by the street car tracks. The paved area of the street is double the width of the usual pavement with a dirt strip in between, and there is a curb three inches high along the easterly boundary of the pavement. East of this curb is an unpaved area along the lake in which is located a double track for street cars. This area is not open for vehicular travel and the rails, ties, and ballast of the track are open and uncovered as on the ordinary railway track. North bound cars travel on the easterly track and south bound cars travel on the westerly track. At the place where the accident occurred Newton street intersects Westlake Avenue, but does not extend over or across the street car tracks. At this point in the track area two loading and unloading platforms have been constructed parallel to the tracks, each six feet wide and sixty feet long. One platform is located between the curb at the new pavement edge and the west rail of the westerly track; the other is east of the easterly track. There is a crosswalk at both ends across the tracks connecting the two platforms. There is also a wood guard rail along the curb separating the paved street from the west platform, with an entrance at the north end thereof. Eighteen feet north of the northerly end of the platform is a sixteen-foot crosswalk utilized for vehicular traffic from the east side of Westlake Avenue. Approximately 150 feet easterly of the north bound tracks is the shore of Lake Union upon which lake are constructed numerous house boats. On the southwest corner of Westlake Avenue and Newton street is constructed a gasoline service station.

Between five and six o'clock in the afternoon of February 10, 1938, respondent alighted from a taxicab opposite the houseboats and walked across the tracks in an easterly direction to a houseboat occupied by Mr. Kelly. Respondent remained at this friend's house until about ten o'clock, at which time he crossed the track to the gasoline station. After remaining at the station for a short time he thought he saw some friends approaching along Westlake Avenue in an automobile and who crossed the street car tracks and stopped at a point between the easterly tracks and Lake Union. Respondent crossed Westlake Avenue to its easterly side, and stopped at the railing which separated the highway from the street car tracks. At this point he looked to the right and left, but stated he did not see any street car. He then proceeded to walk in an easterly direction on the pedestrian crossing. His vision and hearing were very good. Respondent testified that the evening was clear, the visibility very good, and he could see along the track a distance of 180 feet. After taking three or four steps east of the guard rail, he was hit by south bound street car.

There was evidence to the effect that the street car was going at a speed of forty-five miles per hour, that no bell was rung or brake applied Before respondent was struck. There was an absence of evidence on the part of respondent's witnesses concerning the headlights on the street car just prior to or at the time of the impact. None of them noticed whether or not a headlight was burning. Witness Frye was standing on the east side of the street car track at the time of the accident. When asked about the lights on the front of the car he said: 'I don't know, I couldn't say either one, I don't know which is right, it is just one of those things, I don't remember whether it was dark or light, because in a position like that, when you are looking at somebody about to get hit, you don't know whether there are lights.'

Later, on cross-examination, he gave the following testimony:

'Now, Mr. Frye, not the headlight on the street car, but was the street car otherwise lighted? A. Yes, it was.

'Q. And how fully lighted was it, just describe to the jury what lights the street car had? A. Well, I don't know, just like any other street car would be at night, just looked lighted was all.

'Q. Fully lighted? A. I don't know, just looked lighted. I don't know whether any lights were missing, just looked lighted to me.' Witness Evans was in an automobile waiting for respondent and didn't see the street car until it struck respondent, and when asked about the lights said: 'Well, if there was a light on it I never saw it.' When cross-examined, he said the inside lights on the car were burning.

Witness Gilbertson was standing at the front of the automobile waiting for respondent. She gave the following testimony on direct examination:

'Q. And when you saw the street car, it was approximately at the automobile crossing? A. You know, when you look at something and you glance at something out of your right eye causes you to know that something was coming--well, I saw it. I didn't see it further to the right of me, and I just saw it out of the corner of my eyes in that quick glance. * * *

'Q. Now, did you notice the front end of the street car, Mrs. Gilbertson? A. Oh, I seen it like I say. I saw it a little to my right Before I was even with it. I wouldn't know how many feet out there. I saw it a little to my right like that as I kind of half turned and glanced back at him again.

'Q. Did you notice whether or not the light was burning? A. I didn't notice any light. If there was one burning, I didn't see it.'

The passengers getting on the car at 73rd Avenue and Greenwood, 62nd Avenue and Phinney, 59th Avenue and Phinney, and 43rd Avenue and Fremont, all testified that the headlight was burning when they boarded the car, and one passenger testified that the light above the car door was burning at the time of the accident. The motorman was certain that all the lights on the car were burning, including the headlight. All witnesses who examined the headlight after the accident were agreed that the outer glass was broken, and the motorman explained that its condition was caused by hitting respondent.

For the purposes of this case, we will assume without deciding the negligence of the motorman in operating the street car. In approaching the question of respondent's contributory negligence we have in mind that:

'* * * the questions of negligence and contributory negligence, where the evidence is conflicting, is always a question for the jury, has been held in so many cases that it is unnecessary to cite them.' Crowe v. O'Rourke, 146 Wash. 74, 262 P. 136, 138.

'It has long been the rule of this court that, Before a court will be justified in taking from the jury the question of contributory negligence, the acts done must be so palpably negligent that there can be no two opinions concerning them.' Walters v. Seattle, 97 Wash. 657, 167 P. 124, 125.

Was there sufficient competent evidence to show that the headlight on the street car was not burning as it approached the crosswalk upon which respondent was injured?

The evidence that it was not burning, at the most, was of a negative character. Only one of the witnesses noticed the car at a point closer to the crosswalk than fifteen feet, and that witness, Ada Gilbertson, had but a fleeting glance at it, and said: 'I just saw it out of the corner of my eyes in that quick glance.'

The failure to notice the street car and to ascertain whether its lights were burning was natural because the witnesses either lived in the vicinity, and did not take...