Samuels v. Hiawatha Holstein Dairy Co.

• Decision Date: 12 April 1921
• Docket Number: 16282.
• Court: Washington Supreme Court
• Parties: SAMUELS v. HIAWATHA HOLSTEIN DAIRY CO. et al.

197 P. 24

115 Wash. 343

SAMUELS v. HIAWATHA HOLSTEIN DAIRY CO. et al.

No. 16282.

Supreme Court of Washington

April 12, 1921

Department 1.

Appeal from Superior Court, Spokane County; Hugo E. Oswald, Judge.

Action by Frances K. Samuels against the Hiawatha Holstein Dairy Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

E. J. Cannon, F. J. McKevitt, and E. Eugene Davis all of Spokane, for appellants.

E. O Connor and M. E. Mack, both of Spokane, for respondent.

HOLCOMB J.

After a verdict in favor of respondent for $13,000 general damages together with the sum of $1,205, for doctor bills, hospital fees, nurse hire, and clothing, awarded by a jury, the trial court denied a motion for judgment notwithstanding the verdict, and denied a motion for a new trial, conditioned upon the respondent remitting the sum of $3,000 on the verdict as general damages, and the sum of $163 from the verdict on the items for doctor bills, hospital fees, nurse hire, and clothing, upon the ground, as to the latter, that the jury had included $163 which had not been proven or admitted; and, respondent filing her submission to the remission of the above items, a new trial was thereupon denied, and judgment entered accordingly.

Appellant, the Hiawatha Holstein Dairy Company, a corporation, is the principal and real party in interest as defendant in this case, the other corporation being organized for the purpose of taking over the business of the Hiawatha Company at the time of the injuries complained of, but which had not done so, and the Hiawatha Company was operating the business and the automobile truck in question.

The automobile truck of the Hiawatha Company driven by its driver ran down and injured respondent, a single woman 35 years of age, who was, at the time, attempting to board a street car at the usual place of stopping and receiving and discharging passengers.

If the evidence for respondent was true, as found by the jury, the truck driver violated the state and the city law, and was guilty of very gross negligence, and respondent was guilty of no contributory negligence, as a matter of law; the facts being for the jury.

The accident occurred on Third avenue at its intersection with Sherman street, in the city of Spokane, on October 28, 1919, at about 7:30 o'clock p. m. Respondent was waiting on the sidewalk at the street crossing at the corner of Third avenue and Sherman street to board a car going west. At the same time a man by the name of Devenere was waiting at the same crossing, and standing a few feet west of respondent. They saw the street car coming from the east, and an automobile some distance beyond the car. They walked straight out from the curb at the street crossing on the pavement to the street car, Devenere being about 5 feet west of respondent. Respondent carefully looked twice for an automobile coming on that side of the street from the east before leaving the curb, but saw only the automobile truck a block away, and thought she had ample time to board the car. When the street car stopped it stopped a short distance to the west of respondent, and she was obliged to face to the west and take a step or two to reach the rear entrance of the street car, and while so doing was struck in the back by the truck. She, standing at the same time about or within 2 feet from the street car, was knocked down and dragged about 60 feet under the truck before the truck was stopped. Devenere, who was standing at the crossing ready to board the car, was in a position facing the oncoming truck, and stepped back, narrowly escaping being run down. The front wheels of the truck passed over respondent, and she was taken out from under the hind wheels. Witnesses for respondent testified that the autotruck was running from 25 to 30 miles per hour. There was an arc light at the street intersection, and the arc light was burning directly over the place where the accident occurred. Respondent was in plain view. There was room between respondent and the curbing for the auto truck to pass respondent between her and the curb. There is evidence that the driver did not slacken his speed and blew no horn, and the driver testified that he did not see respondent until he was 5 feet from her.

Respondent suffered serious and permanent injuries. There was a compound comminuted spiral fracture of the right leg above the knee; her back was permanently injured, from which she still suffered intense pain at the time of the trial; skin was scraped from her hand and body; the bones broken in the leg lacerated and protruded from the flesh, and her right leg will be nearly one inch shorter than the other, permanently. She is obliged to wear a special shoe, with a sole about an inch higher, in order to equalize the length of her limbs.

The foregoing is a summary of the case made by respondent, on which the jury found in her favor.

Appellants admitted that the autotruck in question belonged to, and was operated by, the Hiawatha Company, but pleaded affirmatively that the driver Hieneman was not, at the time, engaged in the business of the company, and further that respondent was guilty of contributory negligence, in that she did not approach the street car at the street intersection, but some feet easterly of the crossing intersection, and that she did not look for automobiles from the east when crossing the portion of the street between the curb and the street car; and pleaded an ordinance of the city of Spokane containing a section as follows:

'Pedestrians shall have the right of way at the street intersections and crossings; vehicles the right of way between intersections and crossings.'

Appellants' affirmative allegations were denied by respondent. Respondent, in her amended complaint, pleaded ordinances of the city of Spokane, as follows:

'Outside of the congested districts no vehicle shall pass a street car loading or unloading passengers, at a rate of speed in excess of six miles per hour, nor shall such vehicle pass such street car loading or unloading passengers unless the vehicle clear the car so stopping at least six feet from the running board of the car.

'Unceasing vigilance shall be exercised on all streets at all times by the drivers of vehicles whenever a street car stops or passengers are assembled to take a street car.'

Also:

'In no case shall any motor vehicle or street car be driven or operated or moved over any street, avenue, alley or public highway in the city of Spokane at a rate of speed faster than twelve miles per hour at any crossing within the thickly settled or business portion of the city of Spokane, * * * nor in any portion of the city of Spokane faster than twenty miles per hour. * * *'

And also:

'No person driving or operating any vehicle or street car shall drive or operate the same in any other than a careful and prudent manner, nor at any greater speed than is reasonable and proper, having due regard to the traffic and use of the way by others, or so as to endanger the life or limb of any person.'

The primary question urged by appellants, aside from the question of contributory negligence, is the question of whether or not appellant's truck, at the time of the accident, was being operated in appellant's behalf, or whether the doctrine of respondeat superior would apply.

It is admitted that the truck belonged to appellants, the Hiawatha Company, and that the driver Hieneman was in the employ of appellant, and it was shown by appellants that the hours of employment of Hieneman were from 8 a. m., to 5 p. m., and that all drivers had received positive instructions, both written and oral, not to take appellants' automobiles from their place of...