Smith v. Union Trunk Line

• Decision Date: 21 December 1897
• Court: Washington Supreme Court
• Parties: SMITH v. UNION TRUNK LINE.

51 P. 400

18 Wash. 351

SMITH v. UNION TRUNK LINE.

Supreme Court of Washington

December 21, 1897

Appeal from superior court, King county; E. D. Benson, Judge.

Action by George H. Smith against the Union Trunk Line. From a judgment for plaintiff, defendant appeals. Affirmed.

John E Humphries, William E. Humphrey, and E. P. Edsen, for appellant.

Lindsay King & Turner, for respondent.

DUNBAR J.

This is an action against the appellant, a street-railway company for personal injuries inflicted upon the respondent. The complaint alleges that the appellant negligently and carelessly struck, knocked down, and dragged respondent a distance of 25 feet, negligently caused the car in which the respondent was riding to be overcrowded thereby preventing the respondent from seeing the car coming west (the car which struck respondent); that the car which struck respondent was not furnished with any fenders or safeguards; that the injuries were inflicted on one of the street corners in one of the crowded streets in Seattle; that no warning or signal was given by the gripman on the approaching car, and that the speed of the respective cars was not slackened as they approached; that the gripman of the car coming west had ample time to prevent said injuries, which he failed to do. In this case the appellant was the owner and operator of a couple of street railroads with parallel lines on James street. The south track was used for cars going east, and the north track for cars going west. The tracks were about seven feet apart, and when the cars were opposite each other there was a space of about two and a half feet between them. It is conceded that the street was open, and free from obstruction. The plaintiff boarded the car at Second street, and at Fourth street he stepped off of the car, at the crossing, and undertook to walk across the track on the north, and was run down and injured by the west-bound car, and sustained the injuries complained of. At the conclusion of the respondent's testimony, appellant moved for a nonsuit, which motion was denied. Appellant then introduced its testimony in defense, the case was submitted to the jury, who found a verdict for the respondent.

If this case could be reversed at all, it would be upon the theory that the appellant was entitled to its motion for a nonsuit for the reason that the testimony of the respondent himself showed contributory negligence. The testimony contradicting the statements made by respondent and his witness was a matter for the consideration of the jury. The respondent testified that the car was crowded when he got on at Second street; that more passengers got on the car at Third street, and that he was crowded over to the north side and the back end thereof; that he signaled to the conductor to let him off, and, his signal not being answered, he stepped off of the north side, and started to walk across the street,-that is, he stepped upon the track, saw the east-bound train within a few feet of him, and undertook to throw himself off of the track, but was not given time enough to do so, and his leg was caught, and he was dragged under the car. The testimony of the respondent's witness is to the effect that the gripman on the east-bound train was not tending to his business, but was engaged at the time in conversation with a lady passenger. Some of the witnesses testified that they saw the danger the respondent was in, and hallooed to the gripman to stop the car. Witness Wood testified to this effect, and that in notifying the gripman he used very strong language, because he felt "hot," seeing that the gripman had plenty of time to stop the car in the way it was running down. Another witness testified that the gripman, after he became aware of the danger, did not act with promptitude, but very deliberately took hold of the lever for the purpose of stopping the car; and the witnesses to the accident who were introduced by the respondent testified that no bell was rung, nor signal of any kind given by either car, as they passed each other. It is also in evidence that the cars did not have cowcatcher attachments, or the latest improvements, which the ordinance in relation to street cars in Seattle provides for. The cars were running at about the rate of eight miles an hour. The testimony is that the car, at the place the accident occurred, at the rate of speed which the east-bound car was running, could be stopped, by a competent man, in from 5 to 12 feet.

It is insisted by the appellant that the respondent could have seen, and ought to have seen, the east-bound train coming towards him when he alighted, for the reason that it was an open street; but the testimony of the respondent is that he was unable to see the train by reason of the car which he was on being crowded; that many passengers were standing up, standing on the outside of the car, and hanging on to the straps; that they were thus in front of him, and that it was impossible for him to see anything in that direction. It is earnestly contended by the appellant that the respondent was guilty of contributory negligence in not looking and listening to see whether a car was coming from the east, before he ventured onto the track. The testimony of the respondent is that he did look and listen, but his testimony is somewhat confused in this respect. It may be said that without any doubt the testimony of the respondent at least shows negligence, and gross negligence, on the part of the defendant. If a passenger, having no...