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

• Decision Date: 15 January 1908
• Citation: 93 P. 419,48 Wash. 233
• Court: Washington Supreme Court
• Parties: WALTERS v. SEATTLE, R. & S. RY. CO.

93 P. 419

48 Wash. 233

WALTERS v. SEATTLE, R. & S. RY. CO.

Supreme Court of Washington

January 15, 1908

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Personal injury action by Inez Walters, by Leona Walters, her guardian ad litem, against the Seattle, Renton & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Sachs & Hale, for appellant.

Geo. P Rossman and Jackson Silbaugh, for respondent.

FULLERTON J.

The appellant owns and operates an electric railway extending from the city of Seattle to the town of Renton, in King county. On August 13, 1906, the respondent was a passenger on one of the appellant's cars, and was injured by a collision which occurred between the car on which she was riding and a car coming from the opposite direction. This action was brought to recover damages for the injuries received. At the trial the jury returned a verdict in favor of respondent for the sum of $5,000. The trial judge deemed the recovery excessive, and reduced it to $3,000, offering the respondent the alternative of accepting it, as reduced or submitting to a new trial. The respondent accepted the modified verdict, and the judgment from which this appeal is taken was entered thereon.

The appellant requested an instruction to the effect that if the car which collided with the car on which the respondent was riding came in contact with some clay which had been deposited upon the track 'by some agency not under the control of the defendant,' and that when the car wheels struck such clay the car by reason of coming in contact therewith shot forward, and that the motorman thereon did all in his power to stop the car before it came into collision with the car on which the appellant was a passenger, but could not with the highest degree of care have prevented the collision and the motorman on the other car was guilty of no negligence, then the appellant would not be liable for the collision, or liable in damages to the respondent for her injuries. This instruction the court properly refused. It does not correctly measure the appellant's duties. For a railway company carrying passengers to show merely that a collision was caused by some obstruction of the track, caused by an agency over which it had no control, is not enough to excuse it from responsibility for a collision. It must go further, and show that it could not, by the highest degree of care and diligence consistent with the practical operation of its railway, have discovered and removed the obstruction prior to the time it operated its cars over the track. The instruction requested omitted this qualification, and was therefore incorrect as a statement of the law.

The court charged the jury, in substance, that the happening of the collision raised a presumption of negligence on the part of the railway company, and that the respondent was entitled to recover thereon, unless they were convinced that the evidence on the part of the railway company overcame this presumption. The appellant admits the correctness of the rule as applied in this jurisdiction, but contends that there was here no room for its application, as the respondent did not content herself with alleging generally that she was a passenger on the car, that a collision occurred and that she was injured thereby, but went farther and alleged particularly the cause of the accident, and that since she...