Simonson v. Huff

• Decision Date: 04 May 1923
• Docket Number: 17318.
• Citation: 124 Wash. 549,215 P. 49
• Court: Washington Supreme Court
• Parties: SIMONSON et ux. v. HUFF et al.

215 P. 49

124 Wash. 549

SIMONSON et ux. v. HUFF et al.

No. 17318.

Supreme Court of Washington

May 4, 1923

Department 2.

Appeal from Superior Court, Yakima County; V. O. Nichoson, Judge.

Action by S. J. Simonson and wife against Ray Huff and others co-partners doing business under the name of Triangle Taxi &amp Stage Company. Judgment for plaintiffs, and defendants appeal. Affirmed.

Lee C Delle, of Yakima, and Van Dyke & Thomas, of Seattle, for appellants.

Grady, Shumate & Velekanje, of Yakima, for respondents.

FULLERTON J.

The respondents, Simonson, brought this action against the appellants, Huff and Smith, to recover for the death of their minor son. From a judgment in their favor, this appeal is prosecuted.

The appellants are copartners, and, under their partnership name of Triangle Taxi & Stage Company, operate an automobile stage line between a place known as Cowiche and the city of Yakima. As the route traveled by the company's stages approaches the corporate limits of the city of Yakima, it passes over a public highway known as Summit View avenue. In the center of this highway is a street car track, over which street cars are regularly operated. The surrounding territory is a residence district, and is laid out into blocks and streets in the manner usual in such cases. The highway through this district is paved with black-top paving on each side of the street between the outer lines of the street car track and the curbing next to the property lines. At the place where the accident happened, which resulted in the death of the boy, is an intersecting street, known as Alberta avenue. As the stage of the appellants approached this intersecting street, traveling in an easterly direction, it overtook a wagon and team traveling in the same direction. To pass around the wagon the stage driver turned to the left, and, seeing a street car approaching on the other side of the intersecting street, continued on the turn until he reached the north side of the avenue, so as to pass to the left of the street car. At this time the minor son of the respondents approached Summit View avenue from the south, walking on the west side of Alberta avenue, intending to cross Summit View avenue at the street intersection. He, too, saw the approaching street car and stood on the curb waiting for it to pass the intersecting street. As the car passed the intersection, the boy started across the street on the run, and as he reached a point near the center of the paved portion on the north side of Summit View avenue, the approaching stage struck him, crushing him to death.

The driver of the stage did not materially slacken the speed of the stage from the time he turned to the left to go around the team and wagon until he saw the boy come from behind the street car. At that time he seems to have done everything humanly possible to avoid striking the boy, but was unable either to stop the stage or to control its direction owing to the wet, slippery condition of the pavement. Up to the time he saw the boy, the driver says he was traveling at about 22 miles an hour. Other witnesses fix his rate of speed even higher, although none testify that he was exceeding the speed limit. The boy, though but 6 1/2 years of age, exercised, according to the eyewitness to the accident, the caution of an older person. He saw that he had plenty of time to pass in front of the approaching team on his left, and when reaching the center of the street looked for approaching vehicles on his right. He did not, however, look in the direction of the stage which struck him.

Noticing the assignments of error in s somewhat different order than they are set out in the briefs of counsel, the first is that there should have been a directed verdict. The contention on this point, if we have correctly gathered the arguments, is twofold: First, that there was no negligence shown on the part of the appellants; and second, if it conceded that there was sufficient evidence to go to the jury on that question, the evidence conclusively establishes that the boy was guilty of such contributory negligence as to bar a recovery. But we cannot think these questions merit extended discussion. As to the appellants, their driver was driving his vehicle on the wrong side of the road; he was driving at such a rate of speed as to prevent the control of his automobile; mobile; he approached a street intersection while so driving in a residence section, where he had reason to anticipate meeting a person crossing the street in front of him; and he approached the intersection at a time when a street car prevented him from seeing whether a person was so crossing or not. Clearly there was here sufficient evidence to carry the question of negligence to the jury. As to the boy, there is no evidence that he did not exercise the utmost prudence, unless the fact that he did not look for approaching vehicles from his left after he reached the center of the street was want of prudence. But this is not an imperative duty under all circumstances, and it was for the jury to say whether it was a duty in this instance. There was therefore no error on the part of the court in submitting these questions to the determination of the jury.

The respondent S. J. Simonson stated on his direct examination that he was engaged in business in the city of Yakima, and had been so engaged for a number of years. On cross-examination he was asked what that business was, to which an objection was interposed and sustained by the court. The court sustained the objection on the ground that the matter had not been gone into on the witness' direct examination. But this was not a sufficient reason for excluding the question. From the earliest times it has been held relevant to inquire of a witness as to his occupation. 1 Greenleaf on Evidence (15th Ed.) § 456. This on the principle that the...