Pritchett v. City of Seattle

• Decision Date: 05 February 1959
• Docket Number: No. 34601,34601
• Citation: 335 P.2d 31,53 Wn.2d 521
• Court: Washington Supreme Court
• Parties: Alice A. PRITCHETT and Homer H. Pritchett, husband and wife, Respondents, v. CITY OF SEATTLE, a municipal corporation, Appellant.

Page 521

53 Wn.2d 521

335 P.2d 31

Alice A. PRITCHETT and Homer H. Pritchett, husband and wife Respondents, v. CITY OF SEATTLE, a municipal corporation, Appellant.

No. 34601.

Supreme Court of Washington, Department 2.

Feb. 5, 1959.

A. C. Van Soelen, Corp. Counsel, and William W. Brown, Seattle, for appellant.

Kahin, Carmody & Horswill, Seattle, for respondents.

ROSELLINI, Judge.

This action was brought by the plaintiff wife, hereafter referred to as the plaintiff, to recover damages for personal injuries sustained while riding as a passenger on a transit bus belonging to the defendant and operated by one of its employees. The jury returned a verdict in favor of the defendant. Thereafter the trial court gave judgment for the plaintiff and ordered a new trial on the issue of damages only. In the alternative, the order provided that in the event the foregoing order should be reversed or set aside for any reason, a new trial should be had on all the issues because of certain errors in giving and refusing instructions. It was the opinion of the trial court that the evidence showed, as a matter of law, that the defendant's employee was negligent and that this negligence was the proximate cause of the plaintiff's injuries.

Error is assigned to the rulings of the trial court embodied in this order. The jury's verdict should stand, the defendant contends, because the evidence was in conflict and the jury could properly find that the defendant's employee was free of negligence.

It is an established rule that a motion for judgment notwithstanding the verdict involves no element of discretion and will not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference from the evidence sufficient to sustain the verdict. Omeitt v. Department of Labor and Industries, 21 Wash.2d 684, 152 P.2d 973. The evidence must be construed most strongly against the moving party. Cooper v. Gallaher, 50 Wash.2d 588, 313 P.2d 702.

The accident in question occurred on Third avenue in Seattle, while the bus on which the plaintiff was a passenger was moving from the bus zone at Columbia street, where passengers had been discharged, to the intersection at Cherry street, one half block away, where it came to a stop for a traffic light. According to the plaintiff's testimony, she was seated in the first seat behind the rear door and stair well. When the passengers were discharged, she signaled the operator to stop at the next loading zone and rose from her seat in order to be prepared to alight when the bus stopped. She was 'hanging on to the stanchion.' The bus swerved, throwing her off balance, and then came to a sudden stop, throwing her forward in the bus and causing her to fall. As a result of the fall, her back was severely injured.

The plaintiff called two former bus drivers who testified that the force of an ordinary stop would not throw a person standing and holding onto the stanchion. The plaintiff's physician testified that the type of injury which she suffered does not ordinarily occur except as the result of considerable trauma, as sudden jackknifing forward of the body, or a sudden fall from a distance on the buttocks. There were scuff marks on the floor of the bus immediately after the accident. Such marks, a witness stated, do not appear from ordinary use of the floor.

There were only two passengers on the bus when the accident occurred. The other passenger, William J. Marquette, testified for the defendant. He stated that there was nothing out of the ordinary in the way the bus was being operated at the time. It did not swerve or stop suddenly. He first became aware of the plaintiff's predicament when he heard her feet tapping rapidly down the aisle. He did not know what could have caused the plaintiff to lose her balance and be thrown to the floor.

The driver of the bus testified that as he drove out from the bus zone into the driving lane, there was no traffic behind or ahead of him to affect his operation of the bus. He observed as he pulled out from the zone that the traffic light at Cherry street, which had been green, was changing to red, and prepared to stop. At this point he was aware of the plaintiff in the aisle of the bus. She had lost her balance and was coming down the aisle 'at a good pace,' reaching for the handrails and trying to regain her balance. According to his recollection, she fell just before the bus came to a stop at the intersection. He knew of nothing in the movement or operation of the bus which could have caused her to lose her balance.

The court instructed the jury regarding the plaintiff's theory that the operator of the bus was negligent in making a sudden, unusual and extraordinary jerk and jolt of the bus, in swerving the bus first one way and then the other, in coming to an unusual and violent stop, in traveling at an excessive rate of speed under the circumstances, and in violently applying the brakes without due regard for the safety of passengers. The jury was advised that in order to return a verdict for the plaintiff, it must find that the defendant was negligent in one or more of the respects alleged, and that a carrier of passengers for hire, while not an insurer of the safety of its passengers, owes them the highest degree of care for their safety which is consistent with the practical operation of its vehicle.

In addition to standard instructions regarding burden of proof, circumstantial evidence, proximate cause, and measure of damages, there was an instruction that a carrier is not liable for injuries resulting from jerks and jolts which are ordinarily incident to the careful operation, but only those which result from the careless and negligent operation of a bus.

The plaintiff requested an instruction pertaining to an alleged duty of an operator to watch for standing passengers. When this instruction was refused, the plaintiff's counsel stated to the court that no exception was taken to this ruling. The plaintiff did, however, except to the refusal of the court to give an instruction to the effect that the operator had a duty to anticipate that the traffic light might change and to be prepared to stop in case of such change. The court stated that this was one of the circumstances which could be argued to the jury.

Contributory negligence was alleged, but the court refused to present this issue to the jury. In ruling on the motion for judgment notwithstanding the verdict, the court expressed astonishment that the jury had found in favor of the defendant, and stated that it felt that the evidence would not support such a verdict. It was apparently the feeling of the trial court that, because the plaintiff's testimony that she was holding onto the stanchion when she lost her balance was uncontradicted, the jury was required to believe this testimony. The court evidently failed to take into account that there was no witness who observed the plaintiff as she was standing at that time, and whether or not she was holding onto the stanchion, as she said, was a matter entirely within her own knowledge. Had there been other witnesses who did not contradict her testimony, it might be proper to say that no reasonable jury could disbelieve it. But if the jury chose to believe the testimony of the defendant's witnesses, that nothing out of the ordinary occurred, it was entitled to infer that the plaintiff...