Swanson v. Pacific Northwest Traction Co.

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, J.
• Citation: Swanson v. Pacific Northwest Traction Co., 121 Wash. 96, 208 P. 10 (Wash. 1922)
• Decision Date: 26 July 1922
• Docket Number: 17116.
• Parties: SWANSON v. PACIFIC NORTHWEST TRACTION CO. et al.

208 P. 10

121 Wash. 96

SWANSON v. PACIFIC NORTHWEST TRACTION CO. et al.

No. 17116.

Supreme Court of Washington

July 26, 1922

Department 2.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by F. A. Swanson against the Pacific Northwest Traction Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

James B. Howe and Hugh A. Tait, both of Seattle, for appellants.

Elias A. Wright and Sam A. Wright, both of Seattle, for respondent.

HOLCOMB J.

This action was to recover for personal injuries alleged to have been received by respondent, and damages to his Ford automobile truck as a result of collision between such truck and one of the electric interurban cars owned by the appellant railway, and at the time operated by the appellant Nelson.

The accident occurred on April 15, 1921, at the intersection of Phinney avenue and North Forty-Seventh street, in Seattle.

Respondent alleged that the collision was due to, and proximately caused by, the negligence of appellants, and especially the negligence of the appellant Nelson, while in the course of his duties as an employee of the traction company, and while he was acting for and on behalf of, and as the servant and agent of, the traction company; the negligence of appellant being alleged as follows:

'(a) The defendants, when the said car was approaching North Forty-Seventh street, negligently and carelessly and unlawfully failed to sound any warning or to ring any bell or to in any way apprise any person that might be on said street of the approach of its car, although the defendants well knew that North Forty-Seventh street was open to traffic and was being used by residents of the city of Seattle as a much traveled thoroughfare.

'(b) The defendants negligently permitted and allowed the said street car to approach and come up to and onto North Forty-Seventh street at a high and dangerous and unlawful rate of speed, at least 40 miles per hour, and without having and keeping the said car under control.

'(c) The defendants, when their car was approaching North Forty-Seventh street, negligently, carelessly and unlawfully failed to keep a lookout for approaching vehicles on North Forty-Seventh street, and failed to use reasonable care to avoid a collision with plaintiff's automobile.

'(d) The defendants, after they saw, or by the exercise of reasonable care should have seen, that their car was apt to collide with the plaintiff's automobile, and at a time when by the exercise of reasonable care could have avoided the collision in question, negligently and carelessly failed to use proper efforts to avoid said collision.'

Respondent further alleges that the operation of appellants' car at the time and place of the accident was in violation of a city ordinance of Seattle.

Appellants filed separate answers, denying the allegations of negligence, and pleading affirmatively that respondent was guilty of contributory negligence, which allegations of contributory negligence were denied by respondent's replies.

The jury awarded a verdict of $3,500 in favor of respondent against both appellants.

Appellants had requested the court to instruct the jury to return a verdict in their favor, which was denied, and after the verdict moved for judgment n. o. v., and in the alternative for a new trial, which motions were denied.

The evidence on behalf of respondent shows that he left his home on Whitman avenue, 10 or 15 blocks east and south of the North Forty-Seventh street and Phinney avenue intersection in Seattle, driving his Ford delivery truck, which he used in delivering groceries and merchandise, arriving at the intersection of those streets at about 3:20 p. m. About 50 feet from the place where the collision occurred, he brought his automobile practically to a stop, and looking to the north a distance of about 700 feet saw a car of the appellant company entering Phinney avenue at North Fiftieth street. At the same time he looked to the south and saw a street car of the city of Seattle about two blocks away, or at North Forty-Fifth street. There being no danger, apparently, from either car, he proceeded in low gear, at about two miles an hour across the street. As the front wheels of his automobile got just across the east rail of the west track, or the track along which the interurban car of appellant company was being operated, he looked again, at which time appellants' interurban car was only about 70 feet distant. He turned on more gas, and endeavored to cross the street, but within less than a second was struck by appellants' car and carried a distance of about 100 feet before the interurban car was stopped. Respondent's grocery store is on the southwest corner of the intersection of North Forty-Seventh street and Phinney avenue; the crossing over the street car tracks was in such a condition that it was necessary for respondent to drive slowly, and pick his way across the street, and make a sharp turn after he had crossed the street car tracks in order to come in front of his store. It was shown that no bell or warning of any kind was sounded by the appellant Nelson, who was the motorman and operator of the street car in question at the time of the collision. It was also shown that respondent traveled in his automobile a distance of about 50 feet, or at the rate of about 2 miles an hour while appellants' car ran something like 700 feet, or about 14 times as fast as respondent was traveling. There was testimony that the interurban car was moving at the rate of between 35 and 40 miles per hour; that it was 'just tearing down the street'; that it was going unusually fast. A witness testified that she never remembered seeing the interurban car pass that particular place going at that rate of speed before; and that it did not appear to slacken its speed at all before it crossed the sidewalk on the north side of North Forty-Seventh street. There was testimony also that the motorman was not keeping a lookout, but was facing back into the car. He was either talking to some one, or else he was looking back into the car. He did not turn around until just as the car was about to crash into the automobile.

Respondent was severely injured. His right shoulder was partially dislocated, and he sustained serious concussion of the brain, and the nervous shock incident to the injury affected his heart action, producing intermittent pulse. His nervous system has been so deranged that he cannot control himself, becoming at times hysterical, and subject to fits of wandering. The automobile truck or delivery wagon was damaged to the extent of $300.

Appellants urge that their request for an instructed verdict in their favor should have been granted, or that the motion for judgment n. o. v. should have been granted, because they insist that the evidence shows that respondent was guilty of contributory negligence so that he should not recover, as a matter of law.

Subdivision 6, § 28, c. 96, Laws of 1921, is quoted as follows:

'6. Drivers [of automobiles] when approaching highway intersections, shall look out for and give right of way to vehicles on their right, simultaneously approaching a given point: Provided, however, that street and interurban cars and emergency vehicles shall have the right of way at all times at such highway intersections.'

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