Richmond v. Tacoma Ry. & Power Co.

• Decision Date: 13 March 1912
• Court: Washington Supreme Court
• Parties: RICHMOND v. TACOMA RY. & POWER CO. et al.

122 P. 351

67 Wash. 444

RICHMOND v. TACOMA RY. & POWER CO. et al.

Supreme Court of Washington

March 13, 1912

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Lee Richmond against the Tacoma Railway & Power Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

John A Shackleford and F. D. Oakley, for appellants.

Davis &amp Neal, A. O. Burmeister, and Dunkleberger & Heinly, for respondent.

PARKER, J.

This action was commenced in the superior court for Pierce county to recover damages for personal injuries which the plaintiff alleges resulted to him from the operation of one of the street cars belonging to the defendant Tacoma Railway & Power Company. A trial before the court and a jury resulted in a verdict and judgment in favor of the plaintiff, from which the defendants have appealed.

Appellant Tacoma Railway & Power Company is the owner of an electric street railway system in the city of Tacoma. Appellant A. B Justice was, on the 27th day of July, 1910, and employé of the company in charge of one of its street cars as motorman, when respondent was struck and injured by the car at the crossing of South Fifty-Second and M streets in the city. The negligence charged against appellants is, in substance, that the car was being run at an excessive and unlawful rate of speed, and without any warning of its approach to the crossing until too late to enable respondent to avoid being injured by it, while crossing the track on which it was approaching. Appellants deny the negligence charged against them, and affirmatively allege that respondent's injuries were the result of his own want of care and contributory negligence. The first and principal contention made by counsel for appellants is that the trial court erred in denying their motions for an instructed verdict and for judgment notwithstanding the verdict. This involves their right to have a determination of the cause in their favor upon the evidence as a matter of law, and we will first notice the facts upon which this question must be determined.

The evidence is not free from conflict; but a careful reading of the entire record convinces us that the evidence was sufficient to warrant the jury in regarding the following facts as established thereby. One of the company's lines is a double-track street railway running north and south on M street, where it crosses South Fifty-Second street. This crossing is in a somewhat thickly populated residence district of the city. At the northwest corner of this crossing is a grocery store building, fronting directly upon M street. This is a crossing at which very frequent stops are made by the cars, for the purpose of letting off and taking on passengers. The cars run north upon the east track and south upon the west track. Respondent was familiar with the locality and the manner of operating cars there. He had resided for a considerable time some two blocks to the west of the crossing, and was accustomed to go from his home along the south sidewalk of Fifty-Second street to take northbound cars, which, according to custom, stopped at the north sidewalk crossing. On the morning of July 27, 1910, respondent started from his home to take a north-bound car. He had proceeded but a short distance when he saw a north-bound car coming some distance to the south. He then increased his pace, walking very fast, and also running at least a part of the distance, in order to reach the car when it would stop at the north sidewalk crossing. As he proceeded east along the south side of Fifty-Second street, he could not see north along M street any great distance, because the grocery store building at the northwest corner obstructed his view to the north, until he reached a point near M street. When he was near M street and about 45 feet from the street car track, he could have seen a car coming from the north on the west track had such car been within a distance of about 200 feet from the south sidewalk crossing towards which he was going. He then looked to the north along M Street, and did not see any car coming from that direction. He hurriedly proceeded on his way, then running, and reached the west track at the south sidewalk crossing just after the north-bound car passed that point on the east track, and about the time that car was stopping at the north sidewalk crossing. He intended to pass round to the rear of that car and get on it on the east side; entrance thereto being on that side only, because of the double track. While he was crossing the west track, and evidently while he was near to the east side thereof, he was struck by a swiftly moving south-bound car and thrown to the south and east, landing near or upon the east track. He did not look for the coming of the south bound car after he was about 45 feet from the track, but hurriedly proceeded on his way, evidently thereafter intent only on reaching the north-bound car before it started from the north sidewalk crossing, where he expected it to stop. He does not remember of hearing any warning, by bell or whistle, of the approach of the south-bound car. This may be accounted for by the noise of the other car coming to a stop and the rapid succession of events then occurring, though it seems highly probable that a bell warning was given from the south-bound car about the time it passed the north sidewalk crossing and the other car which was there. Such signal was, in any event, given only a very short time before respondent was struck, and while the car was moving very fast. He says he did not see the south-bound car at any time. If his story is to be believed, it is evident that that car had not reached a point where it could be seen by him when he looked north from a point 45 feet distant from the track; so the car was then at least 200 feet north of the south sidewalk crossing. That car passed the north sidewalk crossing while the other car was there, at a speed of 25 miles an hour as estimated by one witness, and another witness, who had been a street car conductor, estimated its speed at that point at 30 miles an hour. These were apparently disinterested witnesses and seemed to have had fairly good opportunities for observing the speed of the car, though witnesses for the appellant disagreed with them. The brakes were first applied and an effort made to check the speed of the car at about the time it passed the north crossing and the other car. It had then only 51 feet to run before reaching the south crossing, where it struck respondent. Its speed was checked to some extent before reaching respondent, but it was evidently then still continuing at a considerable speed; for it was not finally stopped until it ran a hundred feet or more after striking appellant. One witness testified that it ran 150 feet, arriving at that conclusion by knowing the width of the lots fronting upon the street, and knowing the place where it finally stopped. There was then in force in the city of Tacoma an ordinance of the city regulating the speed of street cars within the city limits, which limited the speed of cars upon double-track lines in this part of the city to 20 miles per hour.

For the purpose of showing the duty of the motorman in controlling his car while passing over crossings and passing other cars, while stopped to let off and take on passengers at crossings, respondent called the superintendent of the company as a witness, who was interrogated and answered as follows: 'Q. I will ask you to state whether or not the company had any rules relative to the operation of a street car in passing another car standing at a crossing taking on passengers, or just going up to the crossing for the purpose of taking on and letting off passengers? A. Yes, sir. Q. I will ask you what that rule was? A. Cars passing another car, discharging or loading passengers, are required to reduce speed and sound gong. Q. Reduce the speed to what? A. What the motorman would consider a safe rate of speed. * * * Q. Would that be for the purpose of enabling him to stop and avoid injuries to people who might get in front of his car? A. Yes; that is the idea. Q. The object of that rule is to protect passengers who are going to or are taking the other car? * * * A. It is not altogether; people might be crossing the street, and a view of the passing car obstructed by the standing car; that is a rule that is for the safety of any one--pedestrians, horses or passengers, or any one else. Q. For the protection of the public generally? A. Yes, sir. Q. There is no particular speed to which it is reduced? A. No, sir.' We note this evidence, not for the purpose of indicating a violation of rules of the company, but as throwing light upon the question of appellant's negligence in the operation of the car at this point, and as indicating what might be expected from the operation of the car by a person of ordinary prudence approaching the crossing at that time.

The evidence being sufficient to warrant the jury in believing these facts, argument seems unnecessary to demonstrate that the question of appellant's negligence was for the jury to determine. The speed of the car, the presence of the street crossing, the presence of the other car, stopped at the crossing to let off and take on passengers, the delay in any attempt to check the speed of the car until it was practically upon the crossing at the side of the other car and the delay in giving any signal of its approach until about that time, it seems to us, leave nothing to be argued upon the question of appellant's negligence, except such argument as might be properly addressed to the jury. Clearly this branch of the case does not present a question of law for the court to decide. Indeed, the argument of learned c...