Tooker v. Perkins

• Decision Date: 11 August 1915
• Docket Number: 12548.
• Citation: 150 P. 1138,86 Wash. 567
• Court: Washington Supreme Court
• Parties: TOOKER et ux. v. PERKINS et ux.

150 P. 1138

86 Wash. 567

TOOKER et ux. v. PERKINS et ux.

No. 12548.

Supreme Court of Washington

August 11, 1915

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

Action by N. L. Tooker and wife against William D. Perkins and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

Kerr & McCord, of Seattle, for appellants.

Walter S. Fulton and Irving T. Cole, both of Seattle, for respondents.

HOLCOMB J.

Respondents brought their action jointly against appellants, for damages for personal injuries in the sum of $4,700, upon allegations of negligence in operating an automobile owned and operated by appellants. There was a verdict for respondents for $4,000, which was reduced to $3,000 by the trial court on motion for new trial. Respondents' recovery was based upon the presentation by them, for the consideration of the court and jury, of substantially the following facts: At about 6 o'clock p. m., on November 23 1913, respondents alighted from a street car on Broadway at East Thomas street, Seattle, and proceeded westerly on the north side of East Thomas street to the east side of Harvard avenue; then, instead of crossing Harvard avenue at its intersection with East Thomas street, they turned north and proceeded along the east side of Harvard avenue a distance of about 120 feet to a point about opposite, or a little north of, the north point or apex of a triangular parking strip which was situated in the middle of Harvard avenue commencing at its intersection with East Thomas street and extending northward about 108 feet. The parking strip is about 39 feet wide at its south end, which is the north line of East Thomas street at its intersection with Harvard avenue. There is a driveway on each side of the parking strip, about 18 feet wide. Southbound traffic passes down the west driveway, and north-bound goes up the east driveway. The width of Harvard avenue is about 75 feet, including the parking strip in its center, which, as said, runs to a point about 108 feet to the north. One block north of East Thomas street is East Harrison street, running parallel with East Thomas, the distance between the two being about 277 or 320 feet; there being some discrepancy in the testimony. At about the same time that respondents undertook to cross Harvard avenue as described, appellants' automobile was being driven south along Harvard avenue between East Harrison and East Thomas streets. The automobile was in charge of one Nelson, appellants' chauffeur, who had had 7 years' experience, and there were in it at the time, besides Nelson, Mrs. Perkins, one of appellants, her son, and three other persons. A little north of the apex of the parking strip, on the west side of Harvard avenue, is the Roycroft apartment building. In front of this building at the time in question there was an automobile, standing motionless. The night was very dark, and it had been raining, but according to respondents' testimony was not raining at the time, and they did not put up their umbrella, but carried it closed. They proceeded across Harvard avenue somewhat diagonally, bearing slightly to the north. When within about 10 feet of the west curb of Harvard and 12 or 15 feet north of the apex of the parking, they for the first time observed the large automobile (appellants') bearing down upon them from the north, at a distance from them of only 6 or 8 feet, and at a speed of about 25 miles an hour, and without any warning to them other than the 'rumbling sound' of the car. According to their testimony, respondents, when about to step off the east curb of the street to cross the street, stopped and looked both ways up and down Harvard avenue for any approaching automobile, but saw none whatever except the one standing in front of the Roycroft. Mrs. Tooker said she remembered distinctly looking----

'past her husband, who was on her right, when they stopped, as she was always scared to death of automobiles, and always looked both ways.'

When they first saw appellants' automobile it had just swerved to the east around the standing automobile in front of the Roycroft. It then suddenly swerved to the right again. Mr. Tooker was nearest the car on the left side, his wife holding his left arm. The on-coming car being so nearly upon them, he tried to swing her to the left and forward in an effort to thrust her away from the car. At the same instant the car struck them both. The chauffeur sat on the right side of the machine, and respondents were struck by the front of the machine. Mr. Tooker was rolled or dragged on the pavement a distance of 30 or 40 feet, and his wife was knocked prone to the street and rendered insensible. The owner of the machine which was standing in front of the Roycroft was sitting just inside the entrance to the Roycroft, beside the front window, and heard a loud crash, which caused him to think his machine had been run into by another, and he immediately went out into the street. He saw the automobile of appellants. He saw that its headlights were not lighted, and that small oil side lamps were lighted, but threw no light out to any distance in front. He said these oil lamps were smeared with smoke, dirt, and soot so that the lights would not, and did not, extend outside the glass fronts of the lamps; that they could not be seen; that they----

'were rotten, no lights at all;' 'if standing 10 or 15 feet away, and that car was going any speed at all, and you instantly looked up, you could not see them [the side lights].'

He had had 19 years' experience in driving automobiles. He had driven cars for the purpose of testing their speed, their mechanism, and their power of stopping and starting, and had driven Packard machines like appellants'. He testified that if this machine had been running at a speed of 4 to 6 miles an hour, it could have been stopped almost instantly, within 2 feet; if it had been running at a speed of not to exceed 6 miles an hour, there would have been no noise from a collision with a person; if running at the speed of about 6 miles an hour, it would have been utterly impossible to have knocked one of respondents insensible and carried the other along crosswise in front of the car a distance of 30 or 40 feet. He also found one of the headlights battered by an impact with some object, and driven back against the radiator. He testified that, in his opinion, the car must have been running at not less than 20 miles an hour. There was also other automobile expert testimony that a car, knocking down respondents and throwing one of them across the front of the machine, and carrying one of them a distance of 30 or 35 feet before the car was brought to a standstill, the operator having done everything that a competent operator of a car could do, must have been running at least 30 to 35 miles an hour. If running 6 miles and hour, it could have been stopped within 2 feet; if at 12 miles an hour, in from 2 to 5 feet. If running at 12 miles an hour, it could not have gone 35 to 40 feet before being stopped by a competent operator, doing all he could. If running 4 to 6 miles an hour when coming in collision with two persons, it would make no noise, but its impact would be more like a shove than a knock.

An ordinance of the city of Seattle, No. 30906, was pleaded and introduced in evidence, which provides among other things, that: 'No person shall operate or use any automobile * * * upon the streets, avenues, alleys, parkways, or other public places in the city of Seattle, without having attached thereto a bell, gong, horn, or other signal device in good working order capable of producing an abrupt sound sufficiently loud to be heard above the noise of traffic, and to serve as an adequate warning of the approach of such automobile and of the danger to any person caused thereby. No person using or operating any automobile * * * shall fail to sound such signal device as a warning when danger exists to any person in or upon any of the streets, avenues, alleys, parkways, or other public places by reason of the approach of such automobile,' etc.

There was also an ordinance, No. 30263, pleaded and introduced in evidence, providing as follows:

'It shall be unlawful for any person to ride, drive, or propel any automobile * * * over or across any street, park, drive or other public place in the city at an excessive or unreasonable rate of speed or at such rate of speed as will endanger the life, limb, or property of pedestrians using such streets or other public places and in no event at a rate of speed greater than twenty miles an hour.'

There was also an ordinance, No. 28563, pleaded and introduced in evidence, which provides, among other things, that automobiles, etc., operated on the streets between the hours of sunset and sunrise shall have fastened to the front thereof at least two white lights of sufficient candle power to be visible for a distance of at least 100 feet in front of such automobile or other motor vehicle.

Respondents' testimony showed that, when the automobile struck them, Mr Tooker, being nearest it, tried to swing Mrs. Tooker forward and to the left in an effort to release her and get her away from the car. At the same instant the car struck them both. Mr. Tooker was thrown flat on his stomach on the ground, and then rolled and bumped along by the car for about 45 feet before it was brought to a stop. He at once picked himself up and rushed back to his wife, whom he found about 35 feet from the rear end of the car, lying unconscious on the ground, with her head badly cut, blood flowing from the wound, and her face, hair, hat, and part of her clothing covered with blood. Mrs. Tooker was carried in an unconscious condition to her apartments in the Roycroft, and remained in...