Roberts v. Spokane Street Railway Co.

• Decision Date: 28 November 1900
• Court: Washington Supreme Court
• Parties: ROBERTS v. SPOKANE ST RY. CO.

63 P. 506

23 Wash. 325

ROBERTS v. SPOKANE ST RY. CO.

Supreme Court of Washington

November 28, 1900

Appeal from superior court, Spokane county; William E. Richardson Judge.

Action by Edward Roberts, an infant, by Edward J. Roberts, his guardian ad litem, against the Spokane Street-Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Stephens & Bunn, for appellant.

C. S Voorhees, Reese H. Voorhees, and Albert Allen, for respondent.

REAVIS J.

Plaintiff by his guardian ad litem, commenced an action against defendant, a street-railway company of Spokane, for personal injuries sustained through negligence of the company, and alleged that Spokane was a city with a population of over 30,000; that Riverside avenue, where the injury occurred, was one of the principal thoroughfares and public streets of the city, on which a large amount of business was transacted, and across which all the people of the city were accustomed and had a right to travel; that, by reason of the public use of the street, it was the duty of the defendant to use great care and caution in keeping its cars and machinery in proper condition and repair, as well as great caution in the operation and running of the cars over its tracks on Riverside avenue; that for a long time prior to the injury of plaintiff the defendant carelessly and negligently used and operated a car upon Riverside avenue which was broken, defective, and out of repair, in that the controller handle thereon (being the handle used for the purpose of turning the current of electricity off and on and controlling the car) was broken, and on account of such defect the power of the motorman operating the car, to control and regulate the current of electricity and to control the car in case of an emergency, was rendered uncertain; that by reason thereof it was dangerous to operate such defective car upon the street; that defendant was careless and negligent in operating such car in such dangerous and defective condition; that defendant at the time of the injury was running such car at a high and dangerous rate of speed along one of its tracks on Riverside avenue, meeting another car coming in the opposite direction on a parallel track, causing the two cars to meet and pass each other at a point where Riverside avenue is crossed by another public street, and which point of crossing was much frequented by public travel with teams, bicycles, and on foot; and that on the 8th of May, 1895, while plaintiff was lawfully traveling with a bicycle along, upon, and across Riverside avenue, at the crossing at the streets at the time of the meeting of the cars, he was caught, knocked down, and run over by the defective car and severely injured. Defendant answered the complaint, denying its negligence, and setting up that the injury, if any, received by plaintiff was caused directly, proximately, and solely by his fault and negligence, and without any fault or negligence of defendant, and that the father and guardian ad litem and the mother of plaintiff were guilty of contributory negligence, causing the injury, in allowing the minor plaintiff to escape beyond their custody and control.

In mentioning the facts established at the trial, where the evidence is conflicting only those facts will be considered which are substantially shown from the evidence adduced by plaintiff. At the time the injury occurred the plaintiff was between 10 years and 10 years and 9 months old. He was a boy of average capacity of that age, was accustomed to ride a bicycle in the streets of Spokane, and knew it was dangerous to collide with a street car in motion in the streets while riding his bicycle. Prior to the accident he was holding to the west-bound car, in riding his bicycle, until within about a block and a half of the place where the accident occurred. The east-bound car, which collided with plaintiff, was running at a speed of about 2 1/2 miles per hour. If the plaintiff had looked before going on the track of the defendant in front of the east-bound car, he could not have seen the car in time to avoid the collision. The motorman on the east-bound car rang his bell to salute the passing west-bound car prior to the accident, but just how far distant does not appear. The motorman did not see the plaintiff on the bicycle in time to avoid the collision. The motorman had been in the employ of the defendant company for about two years, and was shown to have experience and capacity. He testified, in substance, that the car had eight wheels, was about 32 feet long, with motors of the Thomson-Houston system, and that it was controlled by an upright controller in front, the reverse and controller lever resting on the same stand, but not on the same staff (that is, on the outside pipe); that there was one pipe for the controller part; that the center staff was the controlling staff, known as the 'rheostat,' which ran down to the bottom of the car on the front end to a spocket, and down to the sprocket wheel, so as to control the connections underneath, known as the 'rear connection,' by a sliding contact; that on the same stand was the controller lever; that the controller lever had an upright handle; that there was a steel or wire spindle that went down from the lever that same out on the steel spindle; that each was worked by a loose handle, and, the handle being held tightly it would turn on the spindle, and connect the sliding contact that was on the rheostat, which was about a half circle, and connected with a cable and sprocket; that the purpose of the controller handle was to start and stop the car by the connection underneath; that the reverse lever was one that came out on the same plan as the controller lever, only that it had no upright handle to it; that there was an overhead switch above the motorman's head, known as a 'cut-off,' to either connect the electricity with the motors or disconnect it; that there were brakes on the car; that the controller or controller handle was the appliance ordinarily used for starting and stopping the car; that it had an upright handle of brass, and a steel or iron rod that went through and riveted underneath; that at the time the controller handle or upright grip that was used to turn on and off the electricity for the motors was wired on with a piece of baling wire, and that the rod of wire or steel that went down through the handle slipped from the staff; that the staff was brass, and there was a hole through the end of it, and the rod went through that hole and was ordinarily riveted underneath, but in this car the constant working of the hard metal on the brass had worn the hole so that it allowed the rod to pull through, and it had thus been wired in order to hold it on (that is, to hold the rod in the proper place). The motorman saw the plaintiff about halfway between the two tracks, a foot or two in advance of the front end of the car. He put his hand on the controller handle, released about a half turn of the controller staff to throw off the current, and at the same time put on the brake, but, in making the motion to throw off the current with the controller handle, the handle fell over and prevented him using the reverse lever. The reverse lever was nearly under the disabled controller handle. His next effort to throw off the electricity was by the overhead switch. The northeast corner of the car struck the boy's bicycle and knocked him forward three or four feet. He saw the boy fall, but could not specify at what distance he was from the car when he struck the ground. When the car was stopped, plaintiff was lying across the north rail, and his left leg under the drive wheel of the car. The track at the time was dry, and slightly inclined to be upgrade. The motorman stated that he made an immediate effort to stop the car when he saw the plaintiff. He says that as soon as he saw the plaintiff he made an effort to throw the current out of the car with the controller, and the handle broke,--pulled out of the socket,--because wired down. Then he made an effort for the reverse lever, and it came in contact with the disabled controller handle. He then threw the overhead switch, and disconnected the current from the trolley wire to the motors. At the time the plaintiff was struck, the front wheel of the car was on or near the west crosswalk or a little west of him. With the controller in good condition, the motorman stated, 'the car could have been stopped under the circumstances, considering the place and rate of speed, very nearly instantly.' He also said the disabled controller prevented his operating it, and prevented him from operating the reverse lever successfully. He also said that the plaintiff would not have gone under the front end of the car had the controller been in sound condition. The motorman was corroborated by other railway employés of experience in his statement that if the controller had been in sound condition the car, under the circumstances, could have been stopped almost immediately; some of them stating two or three feet as the limit. It was also shown that the defect in the controller had existed for some time, and was known to the officers of the company. The plaintiff, in company with another boy, had been following the west-bound car, which was a box car, for some distance. He and his companion had been riding behind the box car on their bicycles, each having hold of the end of the car, until within about a block and a half of the crossing where the accident occurred. They had then ridden along the street some six feet north of the track, still following within a short distance of the west-bound car, until near the place of the accident, when the companion of plaintiff turned south and crossed the two parallel tracks, inviting plaintiff...