Sundstrom v. Puget Sound Traction, Light & Power Co.

• Decision Date: 12 April 1916
• Docket Number: 12953.
• Citation: 90 Wash. 640,156 P. 828
• Court: Washington Supreme Court
• Parties: SUNDSTROM v. PUGET SOUND TRACTION, LIGHT & POWER CO.

156 P. 828

90 Wash. 640

SUNDSTROM v. PUGET SOUND TRACTION, LIGHT & POWER CO.

No. 12953.

Supreme Court of Washington

April 12, 1916

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Olof Sundstrom against the Puget Sound Traction, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James B. Howe and A. J. Falknor, both of Seattle for appellant.

Walter S. Fulton and Arthur E. Griffin, both of Seattle, for respondent.

ELLIS J.

Action in tort by a father to recover for the death of his child, a boy 3 years 9 months old. The child was run over by one of defendant's electric street cars on Fourteenth Avenue Northwest, between Sixty-Seventh and Sixty-Fifth streets in the city of Seattle.

Fourteenth Avenue Northwest runs north and south. The street car line terminates at West Seventieth street, which intersects the avenue at right angles. Three blocks south of West Seventieth street is West Sixty-Seventh street, and two blocks further south is West Sixty-Fifth street, both of which also intersect the avenue at right angles. West Sixty-Sixth street is unopened. At the intersection of the avenue and West Sixty-Fifth street the street car line turns sharply to the east onto the latter street. A short distance north of this curve on the west side of the avenue is a telephone pole upon which is a stop sign as a notice to the operators of south-bound cars to diminish speed in order to make the sharp curve with safety. Between 5 and 6 o'clock in the afternoon of September 3, 1914, the mother of the children sent the little boy and his sister, 7 years old, on an errand to a grocery store located near the terminus of the car line. Plaintiff and his family reside west of and near the intersection of Sixty-Fifth street with the avenue, the exact location not being shown. The avenue is unpaved, but has sidewalks, wooden on the west side and cement on the east. Though it was unnecessary for the children to cross the street car track, in returning home they went over to the east side of the avenue and amused themselves by rolling along the cement sidewalk certain cans which they had purchased. When they reached a point where a path crosses the avenue diagonally, a little to the north of the above-mentioned telephone pole, they started across the street. The manner in which the accident happened as detailed by the motorman is substantially as follows: The street car left the end of the line on this its last trip for the day at a little before 5:55, probably half a minute ahead of scheduled time. The car had gone about one-third of a block south of the intersection of Sixty-Seventh street and the avenue when he noticed the two children starting to cross the street. When they were near the middle of the street the little girl ran across the track. The little boy stopped about 6 or 7 feet from the east rail of the track. We now use his own language:

'I expected him to stay there until I got by. The girl stopped on the other side of the street, and of course I couldn't tell if she said anything or not; she turned around as if she spoke to him. Probably we were not less than a half a car length from where the child was standing when he made a dart across the street. As soon as he did that I--there was only one thing I could do, was to reverse my car and feed up the emergency. The child was 6 or 7 feet from the rail when he started to make this dart across the street. The little fellow stumbled on the rail. He fell down perfectly flat over the rail. I was right on top of him when he fell over the rail. I could not have been any more than a couple of feet, 2 or 3 feet from him when he fell. My car did not knock him down. I reversed the car and fed her up, put the wheels the other way. By that time the fender was right over him. He fell almost the instant the fender went over him. Then my car went almost a car length, I should say; probably a little more. Then I jumped out of the car and the little boy was right in front of the rear truck. When the little boy started to dart across the track when the car was half a car length away, the car was going 12 or 15 miles an hour.'

On cross-examination he further testified:

'I started to stop the car when I was probably about two or three car lengths back of where i hit the little boy. I would not say I was going 15 miles an hour at the time I ran over the child. I said 12 to 15 miles. When I commenced to bring my car to a stop two or three car lengths back I was going about 15 or 16 miles an hour. The car was slowing down. I had a good distance to go yet. I first saw the little child starting to cross the street about a half a block away. The little boy and girl were then together in the street.'

His testimony shows that this diminution of speed was because of the safety sign.

Negligence is charged in the following particulars: (a) Operation of the car at an excessive rate of speed and in violation of a city ordinance; (b) failure to give warning of the approach of the car; (c) equipment of the car with an insufficient fender; (d) failure of the motorman to stop the car after he saw or should have seen the child's danger. Defendant denied negligence and set up contributory negligence of plaintiff as an affirmative defense. The trial resulted in a verdict for plaintiff in the sum of $875. At appropriate times defendant moved for a nonsuit, for a directed verdict, and for judgment non obstante, all of which were denied. From the judgment entered upon the verdict, defendant appeals.

It is first contended that the plaintiff was guilty of contributory negligence is allowing the child to be on the street attended only by his sister 7 years old. Appellant relies upon our decision in

Vinnette v. Northern P. Ry. Co., 47 Wash. 320, 91 P. 975, 18 L. R. A 328, in which case parents were held guilty of contributory negligence, precluding recovery, in permitting a child 6 years old, unattended, to cross and play upon the tracks of a switchyard near their home, where it was killed by a switching train. Though in that case there was some evidence that residents of the neighborhood were accustomed to cross the switching grounds, it was not a public street. The child was technically a trespasser with the knowledge and connivance of the parents. The case here falls directly within our holding in Tecker v. Seattle, Renton & S. Ry. Co., 60 Wash. 570, 111 P. 791, Ann. Cas. 1912B, 842; a case closely analogous to this upon the facts. There the mother of a child of 6 years sent him with his sister of 10 to the post office two blocks distant, when he was killed by a street car. We held that the parents were not guilty of contributory negligence as a matter of law, but that the question was one for the jury. While the children in the case here were considerably younger, the evidence...