Wilcoxen v. City of Seattle

• Decision Date: 14 March 1949
• Docket Number: 30607.
• Citation: 32 Wn.2d 734,203 P.2d 658
• Court: Washington Supreme Court
• Parties: WILCOXEN et ux. v. CITY OF SEATTLE.

203 P.2d 658

32 Wn.2d 734

WILCOXEN et ux. v. CITY OF SEATTLE.

No. 30607.

Supreme Court of Washington

March 14, 1949

Department 2

Rehearing Denied April 18, 1949.

Action by Frederick A. Wilcoxen and wife against the City of Seattle and others for personal injuries to named plaintiff because of a fall in a city bus and plaintiff wife's loss of husband's consortium and services. From a judgment for plaintiffs in a lesser sum than that awarded them by a jury's verdict against defendant city, the city appeals and plaintiffs cross-appeal.

Affirmed.

Appeal from Superior Court, King County; Howard M Findley, judge.

A. C Van Soelen and Campbell C. McCullough, both of Seattle, for appellant.

Koch &amp Morgan, of Seattle, for respondents.

ROBINSON Justice.

This is an appeal and cross-appeal from a judgment entered upon the jury verdict for the plaintiffs in an action for damages with respect to injuries suffered by Frederick Wilcoxen as the result of a fall on a Seattle city bus.

On August 10, 1946, respondent, Frederick A. Wilcoxen, was a paying passenger on a city bus which was being operated by an agent of the city of Seattle in a northerly direction on Greenwood avenue, in the vicinity of an intersection of North 71st street. The situation there can be briefly described as follows: North 71st street enters Greenwood avenue from the east. Some distance north of the intersection, there is a driveway leading into a parking lot adjacent to, and operated by, a Safeway store, which is immediately to the north of the parking lot. Just north of the driveway, and running in front of the Safeway store, there is a scheduled bus zone.

As the bus approached the intersection of North 71st street, Mr. Wilcoxen arose and gave the customary bell signal to be let off in the next zone. The bus driver slowed down, preparatory to moving into the zone, but suddenly, in order to avoid an automobile which had turned in front of him to enter the driveway, brought his vehicle to a halt. The force of the stop threw Mr. Wilcoxen to the floor of the bus, in consequence of which, as alleged in his complaint, he sustained injuries and bruises to his head, limbs, and body; suffered from a post-traumatic myo-fascitis of the posterior cervical and erector spinal muscles, defined in the medical testimony as a combination of an acute strain to the muscles of the head and back and a chronic muscular rheumatism; and further suffered from severe and continuing head pains. He also alleged that as a direct and proximate result of the accident his recovery from a previous surgical operation for varicose veins in both legs was retarded, with resultant pain and suffering; and his wife, who was joined in the complaint, claimed special damages in consequence of loss of consortium and services of her husband, resulting not only from his physical injuries, but from a marked change in his personality and general behavior alleged to have been brought about as a result of the accident.

Complaint was brought against the city of Seattle, with Hiram Leavitt, alleged to be the operator of the automobile involved, and his wife, joined as defendants. At the trial, appellant city seasonably moved to challenge the sufficiency of respondents' evidence, which motion was denied by the court. The jury rendered a verdict in favor of respondents and against the appellant city in the sum of $2,425. After denying appellant's subsequent motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, the court entered a judgment for the sum of two thousand dollars.

On appeal, the city contends that the trial court erred in denying its challenge to the sufficiency of the evidence, in denying its motion for judgment notwithstanding the verdict, and in denying its motion for a new trial. Respondents contend, on cross-appeal, that the trial court erred in modifying the verdict as rendered by the jury. Defendants, Leavitt, who were exonerated by the jury, have no further concern with the action.

The negligence charged in the complaint was as follows: (1) The operator of the bus stopped his vehicle suddenly, abruptly, and violently, thereby causing it to lurch and sway about, and (2) that the operator of the bus failed to keep his vehicle under proper control.

In considering the city's assignment that the trial court erred in refusing to enter judgment in its favor notwithstanding the verdict, it is incumbent upon us to keep in mind the well-established rule that, in passing upon a motion for judgment notwithstanding the verdict, we must not only accept as true all competent evidence in the record favorable to respondents, but must give them the benefit of every favorable inference which may be reasonably drawn from such evidence. Vercruysse v. Cascade Laundry Co., 193 Wash. 184, 74 P.2d 920; Keller v. City of Seattle, 200 Wash. 573, 94 P.2d 184. A motion for a judgment notwithstanding the verdict involves no element of judicial discretion. Wiggins v. North Coast Transportation Co., 2 Wash.2d 446, 98 P.2d 675.

It is the general rule that such jerks or jars, as are necessarily incident to the use of the conveyance and are not the result of negligence, will not render the carrier liable for resulting injuries. Wade v. North Coast Transportation Co., 165 Wash. 418, 5 P.2d 985. As we said in the Wiggins case, supra [2 Wash.2d 446, 98 P.2d 678]:

'The ordinary jolts and jerks of the bus in starting or stopping are among the usual incidents of travel, and for injuries resulting from them, the carrier is not liable.'

It is, however, actionable negligence to cause a conveyance to give a violent or extraordinary jolt, causing injury to a passenger. Cassels v. City of Seattle, 195 Wash. 433, 81 P.2d 275. Whether a given jerk or jolt was 'violent' or 'extraordinary' or 'usual' is ordinarly a question of fact to be determined by the jury. Wiggins v. North Coast Transportation Co., supra.

In Keller v. Seattle, supra, we considered the problem of under what circumstances the evidence that a jerk has been violent or unusual is sufficient to carry a case to the jury. In that case, we quoted the following from Endicott v. Philadelphia Rapid Transit Co., 318 Pa. 12, 177 A. 17:

'Accepting as true plaintiff's evidence as to how the accident happened, we are required to determine whether it is sufficient to show that the car was operated in a negligent manner. In a long line of decisions, recently reviewed by us in Smith v. Pittsburgh Rys. Co., 314 Pa. 541, 171 A. 879, this court and the Superior Court have held that statements that a street car 'started violently,' 'started with a violent jerk,' 'started with a sudden, unusual, extraordinary jerk,' 'stopped with a jerk,' 'came to a hard stop,' 'started up all of a sudden, with an awful jerk, and stopped all of a sudden,' and the like, are not of themselves sufficient to show negligent operation of the car, but that there must be evidence inherently establishing that the occurrence was of an unusual and extraordinary character, or evidence of its effect on other passengers sufficient to show this.' (Italics ours.) [200 Wash. 573, 94 P.2d 188.]

Now, it is true that the testimony as to the effect of the stop on other passengers does little to support plaintiffs' contention that the stop was of an unusual or extraordinary nature. About the strongest testimony to this effect was delivered by Mr. C. S. Stanhope, who testified as follows:

'A. Well, just after we passed 71st, the bus gives a sharp lunge, or stopped real quick, and * * *'

And later:

'Q. Going back to this time, the bus stopped, can you describe that stop? I think you did to some extent, but there are all kinds of stops. What kind was this one? A. It was a very sudden stop.

'Q. You were sitting down, I believe? A. Yes, I was sitting down.

'Q. Did it disturb you in your seat? A. Oh, well, it would jar you all right.'

Such testimony, in itself, would be insufficient to establish the extraordinary character of the jerk. However, we think that there is ample evidence in the testimony of the various witnesses as to the effect the stop had on Mr. Wilcoxen to raise a question of fact on the matter, properly to be determined by the jury. The record presents evidence indicating that Mr. Wilcoxen was seated near the center exit of the bus when he rose to get off at this exit. He was turning around, and, Before he could grasp a handle, he 'went up in the air, and down,' staggering or sliding, and rolling toward the front of the bus, at least as far as the second cross seat where the witness, Mr. Stanhope, was sitting, bumping his head and leaving him somewhat dazed so that he had to be helped to his home. From this testimony, it seems that there was sufficient evidence from which the jury could find, in the words of the Endicott case, supra, that the occurrence was 'of an unusual and extraordinary character,' indicating negligent operation of the bus; and this is particularly true where, as here, and as in the Keller case, supra, the stop occurred while the car was traveling between intersections.

We think that the evidence in the case establishes, beyond reasonable doubt, that the bus driver stopped the bus suddenly, in order to avoid plunging into an automobile which showed up directly in his path, as he was necessarily crossing the roadway into the parking lot in order to stop his bus in the bus zone just north of the roadway. The driver himself so testified. Stanhope, a witness for the plaintiffs, testified regarding that matter as follows:

'Q. Just tell what happened that attracted your attention first. A. The stop stopping suddenly.

'Q. What did you do? A. Well, what do you mena? I want to know what----

'Q. (Interposing) I am trying to step...