GOSE
J.
The
defendant operates a double-track electric street railway
known as the Eastlake Line, on Fourteenth Avenue Northeast in
the city of Seattle. The avenue runs north and south, and is
intersected by East Forty-Seventh street, which runs east and
west. The out-bound car runs on the east track, and the
in-bound car runs on the west track. The distance between the
east
rail of the east track and the curb on Fourteenth avenue is
13 feet 7 inches. The distance between the rails of the
respective tracks is 4 feet 8 1/2 inches. The distance
between the tracks is 5 feet 1 inch, and the clearance
between the bodies of passing cars is 16 inches. On March 26, 1911, at about the hour of 6:45 in the
afternoon, the plaintiff was returning to his fraternity
house situated at the northwest corner of Fourteenth Avenue
Northeast and East Forty-Seventh street. He traveled west
upon the north side of East Forty-Seventh street, walking
rapidly, until he reached the sidewalk or curb on Fourteenth
avenue, where he says he slowed to an ordinary walk. The
out-bound car had stopped at or about the north line of
Forty-Seventh street, and was discharging passengers. He
proceeded toward the standing car until he was about midway
between the curb and the east track, looked north, then
continued west, passing about four feet to the rear of the
standing car, when he was struck by the in-bound car as he
emerged from behind the standing car, and received the
injuries which form the basis of this suit. The avenue and
the street intersect in a thickly settled residential
district. Fourteenth avenue north of the point of
intersection runs straight. It is comparatively level, and
cars to the north are in open view for several blocks when
there is no obstruction to the line of vision. The houses
upon the east side of Fourteenth avenue are back some
distance from the sidewalk. The plaintiff and his witnesses
say that it was twilight or dusk when he met his injury. When
he had reached a point 20 or 30 foot from the sidewalk on
Fourteenth avenue, there was nothing to obstruct his view to
the north, and, had he looked to the north at any place
between that point and the curb, he could have seen the
south-bound car. His witnesses estimate the speed of the
south-bound car at from 15 to 25 miles per hour, and either
say that they heard no bell or other warning, or that no bell
was rung and no warning given. The speed limit on that line
was 12 miles an hour. The plaintiff was twenty years of age,
a university student, had lived in the fraternity house about
two weeks, in the city about five months, and was familiar
with the location of the tracks and the manner in which the
cars were run on Fourteenth avenue. There was a verdict and judgment for the plaintiff, and the
defendant has appealed.
The
only point pressed by the appellant is that the respondent
was guilty of contributory negligence, and hence that it
incurred no liability. The respondent's evidence may best
be stated in his own language. He says:
'A.
Well, I had been over to my own home at Seventeenth Avenue
Northeast for dinner; and I left there about 6:30 to go to
my fraternity house on Forty-Seventh and Fourteenth Avenue
Northeast; and I went up Seventeenth avenue to
Forty-Seventh, and then down the north side on the sidewalk
of Forty-Seventh avenue or Forty-Seventh street; and, when
I came to Fourteenth avenue, there was a car standing
there, and the passengers were getting off; and, as I
stepped from the curb, I glanced down the street and the
automobile was approaching. I did not stop, but I
immediately glanced up Fourteenth, and then passed around
back of this car which was standing there, and as I stepped
out back of the standing car I was struck by the in-bound
car, and after that I do not know anything. I do not know
what happened. * * * I looked to the north just after I
looked to the south. My attention was naturally directed to
the south on account of this automobile, and I was probably
half way between the car and the sidewalk when I glanced to
the north. * * * Q. And, when you got about half way
between the curb and the track, you looked north? A. Yes;
my attention was naturally directed south on account of the
automobile. Q. That kept you from looking when you looked
to the north, the car standing there obstructed your view
of the approaching car? A. It did for a short ways. Q.
Anyway, as you looked to the north, it obstructed your view
so you could not and did not see the car coming on the
opposite side of the standing car? A. Well, I saw a car
further up the track, but that did not obstruct the whole
view. Q. But anyhow it naturally did obstruct your view of
the car which was coming? A. To a certain extent; yes. Q.
And you did not see the car, did you? A. No, sir; I did not
see the car. Q. Then you walked hurriedly around the rear
of the car? A. I walked around the rear of the car. Q. The
car was standing still all the time? You did not wait until
the car discharged the passengers, and moved out of your
line of vision? A. No; I did not. Q. You went around--how
close to the rear of the car did you go? A.
I should judge it was about four feet. * * * Q. Now, when
there are no cars to obstruct your vision, you can see
north of that block, probably a quarter of a mile,
can't you? A. Several blocks. I don't know how far.
Q. Have you any recollection as to you having come into
contact with the car? A. Except as of course it all
happened in a second, and I had the sense of being struck,
but it was too late. Q. When you got back of the rear of
the car, you did not stop and look around the rear of the
car? A. I did not. Q. You kept right on going? A. I did. Q.
The only time you looked to the north was the time that you
were about half way between the curb and the car? A. That
is the time I remember of looking for cars, and the only
time, too. Q. That is the only time you remember of
looking, is it not? A. Yes. That is in the street. Q. At
that time a car was standing there? A. Yes. Q. Now, you
don't know what portion of the car came in contact with
you, do you? A. No. I cannot state specifically
what part of the car came into contact with me. Q. You
seemed to have the realization of it when you went around
the rear of the car. At that instant there was a car there?
A. I was too far gone to get out of the road. * * * Q.
Well, you could see as you left the sidewalk. You could see
a considerable distance north, couldn't you? A. I
could. Q. And, if looked close to the sidewalk, his line of
vision would be increased to the north? A. That is, on the
hill? Q. No; that is on the level. A. Well, coming down? Q.
Yes; as one comes down the sidewalk, as he approaches the
sidewalk, his line of vision would continually increase to
the north? A. Yes. Q. On account of looking over that way?
A. Yes. * * * Q. When you stopped there, about half way
between the sidewalk and the curb, the standing car was
within five or six feet of you? A. When I stopped? Q. I
mean when you say you looked to the north, the standing car
was within five or six feet of you? A. Something like that.
I don't know the exact number of feet, three or four or
five feet; something like that. * * * Q. It was daylight at
the time? A. It was about 6:30 I should judge. It was just
getting dusk. Q. Yes; but it was daylight so that you could
see all around without any difficulty. A. You could see as
much as you can at any time at that time. Q. At that time
it is not dark; it is daylight? A. It is not dark; no; but
it is a kind of a twilight. It is not
exactly daylight. Q. Now, there was nothing to prevent you
seeing cars of anything of the kind or the automobile? A.
No, sir.'
The
automobile to which respondent alluded stopped south of the
southeast intersection of the avenue and street. There were
no obstructions to the north other than the standing car, and
none to the south other than the automobile, and nothing else
to...
