Tecker v. Seattle, R. & S. Ry. Co.

• Decision Date: 23 November 1910
• Citation: 111 P. 791,60 Wash. 570
• Court: Washington Supreme Court
• Parties: TECKER et ux. v. SEATTLE, R. & S. RY. CO.

111 P. 791

60 Wash. 570

TECKER et ux. v. SEATTLE, R. & S. RY. CO.

Supreme Court of Washington

November 23, 1910

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by Finis Tecker and wife against the Seattle, Renton &amp Southern Railway Company. From a judgment for plaintiffs defendant appeals. Affirmed.

Morris B. Sachs, for appellant.

Fred H. Peterson and Philip D. MacBride, for respondents.

GOSE J.

On March 20, 1908, a minor son of the plaintiffs was run over and killed by one of the defendant's electric cars, in Heller street, at its junction with Rainier boulevard, in the city of Seattle. This action was brought to recover damages to the amount of the value of the boy's services during his minority. There was a verdict and judgment for the plaintiffs in the sum of $2,564. The defendant has appealed.

The negligence charged is threefold: (1) The failure of the motorman to keep his eyes fixed upon the track in front of the moving car; (2) his failure to give a signal or warning of the approach of the car at the crossing where the accident happened; and (3) the failure of the appellant to comply with the city ordinance requiring it to carry a fender upon its cars as near to the roadbed as practicable. The appellant denied these charges of negligence, and pleaded affirmatively that the boy lost his life on account of his negligence and the negligence of the respondents. This was denied. At the close of respondents' testimony, the appellant moved for a nonsuit, and, when all the evidence had been submitted, it moved for a directed verdict in its favor. Both motions were denied. It now assigns error upon the denial of the motions, and the giving and refusal to give certain instructions. The ordinance which is the basis for the third charge of negligence is as follows:

'An ordinance requiring corporations and individuals owning, managing or operating street railways within the city of Seattle to provide the cars run or used upon such street railways with guards and appliances for the prevention of accidents, and providing penalties for the violation thereof. Approved May 15, 1896.

'Be it ordained by the city of Seattle as follows:

'Sec. 1. Street Car Fenders--How Constructed. All corporations, companies and individuals owning, managing, or operating any street railway or line in the city of Seattle shall provide all cars run on their respective roads with a guard, protector or fender upon the front end of each car, which guard, protector or fender shall extend at its foremost point as near to the road bed as shall be practicable and shall be so constructed and adjusted that any person or object struck by any such car while in motion may be either raised from the ground by said guard, protector or fender and carried along by said car until the same can be stopped, or be pushed from the track.'

The appellant first contends that the ordinance is unreasonable and void, and that the evidence shows that it is impossible for it to comply with its terms, and cites St. Louis v. Heitzeberg, etc., Co., 141 Mo. 375, 42 S.W. 954, 39 L. R. A. 551, 64 Am. St. Rep. 516; People v. Admire, 39 Ill. 251; Potter v. Douglas County, 87 Mo. 239; 26 Am. & Eng. Enc. Law (2d Ed.) 642; Platt v. Albany Railway, 170 N.Y. 115, 62 N.E. 1071; and Hogan v. Citizens' Ry. Co., 150 Mo. 36, 51 S.W. 473. In the Heitzeberg Case, the court considered the validity of an ordinance which provided that 'the emission into the open air of dense black or thick grey smoke' within the corporate limits of the city of St. Louis is a nuisance, and fixed a penalty for its violation without regard to whether it was injurious to health or property. It was held that the city did not have the power to declare that a nuisance which was not such in fact, and that its failure to provide for an inquiry as to whether the emission of smoke was detrimental to the public health or injurious to property made it unreasonable and void. The court, however, stated that it was 'entirely competent for the city to pass a reasonable ordinance' looking to the suppression of smoke when it becomes a menace to health or property. The Admire Case was a suit brought by the distributees of an estate against the sureties upon the bond of a deceased administrator. It was held that the statute requiring a demand upon the administrator before the commencement of the suit could have no application to a case commenced against his sureties after his death. It was said that the statute should receive a reasonable construction, even though such construction qualifies its letter. In the Douglas County Case, it was held that the constitutional prohibition against the city or its political subdivisions becoming indebted to an amount exceeding in any year the income and revenue of such year, without the previous authorization of the people expressed at the polls, has no application to a debt incurred by the county in favor of the sheriff for the maintanance of persons committed to the county jail. The rule stated in 26 Am. & Eng. Enc. Law (2d Ed.) 642, is that, where a restricted construction of a statute would render it a nullity as contravening the fundamental law, courts will favor a more liberal interpretation. In the Albany Railway Case it was held that, where the city had passed an ordinance requiring street car companies to equip their cars with fenders, they had a reasonable time after the passage of the ordinance in which to comply with its requirements. In Citizens' Railway Company Case, it was held that there was no error in striking from the complaint an averment that the defendant negligently failed to provide its cars with a fender, in the absence of a statute or an ordinance which made it its duty to place fenders on its cars.

It is argued that the ordinance makes it the absolute duty of the appellant to provide a fender which will in every case raise from the ground a person with whom it comes in contact, and that the evidence shows that no fender has been devised which will in every instance perform such function. We think the ordinance, when read as an entirety and given a reasonable interpretation, means that the fender shall be carried as near to the roadbed as is consistent with the practicable operation of the car, to the end that persons coming in contact with it may not pass under it and be crushed and mangled, but that they may be raised and carried upon it. It was intended as a measure to protect human life but it does not assume to impose upon the company the burden of guaranteeing that a suitable fender, carried at a proper distance from the rails, will in all cases perform the desired functions. This view makes the ordinance a reasonable one. It cannot be successfully urged that a municipal corporation has not the power, as well as the duty, to protect the lives and bodies of the people by all reasonable measures. This is a part of the well-recognized police power of every city. People v. Detroit United Ry., 134 Mich. 682, 97 N.W. 36, 63 L. R. A. 746, 104 Am. St. Rep. 626. The learned trial court correctly interpreted the ordinance. The jury were instructed that they should find from the evidence whether the fender was carried as near the roadbed as was practicable, and whether, in the light of the evidence, it was a practicable one within the meaning of the ordinance, and that the appellant could not be required to provide fenders that were not consistent with the practicable operation of the cars. Evidence was given which tends to show that the fender upon the car which struck the boy was twenty to twenty-two inches above the roadbed, and that it is practicable to have them extend within eight inches of the roadbed. The appellant further contends that it was the duty of the court to construe the...