Tobin v. City of Seattle

• Decision Date: 31 December 1923
• Docket Number: 17888.
• Citation: 221 P. 583,127 Wash. 664
• Court: Washington Supreme Court
• Parties: TOBIN v. CITY OF SEATTLE.

221 P. 583

127 Wash. 664

TOBIN v. CITY OF SEATTLE.

No. 17888.

Supreme Court of Washington, En Banc.

December 31, 1923

Appeal from Superior Court, King County; Frater, Judge.

Suit by Kathlyn Tobin against the City of Seattle. From an order dismissing the case because the complaint failed to state a cause of action, plaintiff appeals. Reversed and remanded.

Fullerton Parker, and Pemberton, JJ., dissenting.

J. L Corrigan and Richard E. Morris, both of Seattle, for appellant.

Thos J. L. Kennedy and Edwin C. Ewing, both of Seattle, for respondent.

BRIDGES J.

This was a suit for damages on account of personal injuries. After the cause was at issue, had been called for trial and a jury made up, the defendant objected to the introduction of any evidence on the part of the plaintiff because the complaint failed to state facts sufficient to constitute a cause of action. The court sustained the objection and entered an order dismissing the case, and the plaintiff has appealed.

After alleging that the respondent is a municipal corporation and owns and operates the street car system in the city of Seattle, the complaint states:

'III. That on or about the 23d day of November, 1921, between the hours of 5 and 6 o'clock p. m. (at which time it was dark and raining heavily), plaintiff attempted to board a street car, owned, maintained, and operated by the said city of Seattle, as aforesaid, at a place designated and selected by the said city of Seattle for passengers to board said street cars; said place being located between Garfield and Galer streets on Dexter avenue, on the westerly side of Dexter avenue in the city of Seattle, and due to the negligence of the said city of Seattle plaintiff was seriously and permanently injured as hereinafter particularly described and set forth; such negligence of the city in and about the premises being particularly described and set forth as follows, to wit:

'That the said defendant failed to maintain or provide any sufficient lights or any lights whatsoever at said place, and failed to maintain or provide reasonably safe means of ingress and egress for persons seeking to board street cars at the point hereinabove referred to, and failed to provide or maintain any safety zone or to station any traffic officer at said point, and failed to adopt any other method of making the place so designated by the defendant city, as a place where prospective passengers were invited to board the street cars of the defendant city, reasonably safe for the purpose, and failed to adopt any other safeguard for the protection of intending passengers seeking to board such street car at the point aforesaid, and failed to provide or maintain any system or means whereby intending passengers could signal said street car to stop for the purpose of allowing prospective passengers to board the same, and that, due to the methods of operation adopted by said city, the defendant herein, such street cars would not stop at the point aforesaid to allow passengers to board the same unless such cars were signaled, and that the only means whereby an intending passenger could signal said street car was by standing at the edge of the paved portion of said street at the point above referred to, and that at said point the city had paved but the westerly portion of said street between the west street car track and the west curb of said Dexter avenue and allowed and permitted an unreasonably heavy stream of traffic by automobiles and other vehicles to use said paved portion of the street for travel in both directions, thereby creating an exceedingly dangerous situation for passengers seeking to board said street cars at the point hereinabove referred to and the said city was further negligent in this: That, although it was well known to said city that said westerly portion of the street on November 23, 1921, and for a long time prior thereto, carried a heavy volume of automobile and other vehicular traffic in both directions, the city did not provide any means of warning the operators of such automobiles or other vehicles of the likelihood that passengers intending to board the street cars of the said defendant city would be likely to be standing upon the paved portion of said street, and said city failed to provide any means of advising the operators of such automobiles or other vehicles of the presence of such prospective passengers, and failed to provide any means whatsoever of advising such operators of automobiles and other vehicles that there was any likelihood of pedestrians being upon the paved portion of said street at said point.

'IV. That due to the negligence of the said city of Seattle as hereinabove set forth and while the plaintiff was in the exercise of due and reasonable care and was seeking to board said street car at the point hereinabove referred to and for that purpose, after having looked in both directions to observe whether there were any approaching automobiles or other vehicles, and, no such automobiles or other vehicles being in sight, had stepped out onto the paved portion of said street for the purpose of signaling the said approaching street car to stop so that plaintiff might board the same, and when said street car had almost stopped at the place opposite which plaintiff was standing in response to her signal, an automobile driven by one Harold B. Daigh approached the point where plaintiff was standing, from the south, and that, due to the negligence of the said city of Seattle, there was no means or method adopted to apprise the said Daigh of the presence of the plaintiff upon the paved portion of said street, and as the said Daigh approached from the south another automobile approached from the north at a reasonable rate of speed, and that by reason of the situation thus created and before plaintiff could apprise the operator of said automobiles or either of them, of her presence, and before plaintiff could reach a place of safety or take any steps to prevent her injury, the plaintiff was struck by the automobile operated by the said Daigh and thrown under the street car which was in the act of stopping in response to plaintiff's signal, and that as a result thereof said street car ran over and upon the plaintiff and caused serious and permanent injuries to plaintiff as hereinafter set forth.

'V. That if the said defendant city had maintained proper or sufficient lights at said point, or had provided a safety zone at said point, or had stationed a traffic officer there, or had taken any other reasonable means to render said place reasonably safe for the purposes for which the city intended it to be used, or had provided any other method by which the operators of automobiles and other vehicles using said street would be apprised of the presence of pedestrians upon said paved portion thereof, the plaintiff would not have been injured and that it was due to the negligence of the defendant city that the plaintiff sustained injuries hereinafter more particularly referred to.

'VI. That the said Harold B. Daigh failed to operate his automobile with reasonable care and caution, and failed to maintain a proper lookout for pedestrians, but that, if the city had not been negligent in the particulars hereinabove set forth, plaintiff would not have been injured.

'VII. That as a result of the negligence of the city as hereinabove set forth, combined with the negligence of the said Harold B. Daigh, plaintiff sustained severe and permanent injuries as follows. * * *'

The complaint then alleges the extent of the plaintiff's injuries, and that she had filed a claim with the city.

The theory of the respondent (which appears to have been sustained by the trial court) is that the acts and omissions set forth in the complaint as constituting negligence on the part of the city did not constitute the proximate cause of the injury to the appellant. The basis of this complaint is that, as the result of the concurrent negligence of the city in connection with the place where she undertook to take the street car and that of one Harold B. Daigh in the operation of his automobile, appellant was injured.

While it is almost universally held that one guilty of negligence will not be liable to one injured unless the negligence is the proximate cause of the injury, it is also generally held that either of two, or both, parties are liable, where their negligence proximately contributed to the injury, even though the act of negligence of the one was independant of that of the other. In the case of Hellen v. Supply Laundry Co., 94 Wash. 683, 163 P. 9, we quoted approvingly from Shearman and Redfield on Negligence (6th Ed.) § 26, as follows:

'The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new, independent cause, produces that event, and without which that event would not have occurred.'

In that case we further said:

'There may be more than one proximate cause for the same injury. The negligence of different persons, though otherwise independent, may occur in producing the same injury. In such a case, all are liable. They may be held either jointly or severally. The negligence of one is no excuse for that of another. * * * The question of proximate cause is a mixed question of law and fact. It is usually a question for the jury. It is only where the facts are undisputed and the inferences to be drawn from them are plain and incapable of reasonable doubt or difference of opinion that it may become a question of law for the court.'

Here the complaint charges negligence on the part of the city in failing to furnish a reasonably safe place where intending passengers may take the street car, and that Daigh was negligent in the manner in which he...