Wilson v. Puget Sound Elec. Ry. Co.

• Decision Date: 12 April 1909
• Citation: 101 P. 50,52 Wash. 522
• Parties: WILSON v. PUGET SOUND ELECTRIC RY. CO.
• Court: Washington Supreme Court

101 P. 50

52 Wash. 522

WILSON v. PUGET SOUND ELECTRIC RY. CO.

Supreme Court of Washington

April 12, 1909

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

Action by Etta Wilson against the Puget Sound Electric Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See also, 50 Wash. 596, 97 P. 727.

James B. Howe and Hugh A. Tait, for appellant.

Blaine, Tucker & Hyland and Robert C. Saunders for respondent.

GOSE J.

The respondent, plaintiff below, brought this suit against the appellant to recover damages for personal injuries received by her husband, resulting in his death. The case was tried to a jury, terminating in a verdict and judgment against the appellant. From such judgment, this appeal is prosecuted.

The complaint, in substance, charges that on the 14th day of September, 1907, the respondent's husband became a passenger in an automobile run for hire, and was being conveyed therein from the city of Seattle to a point known as 'The Meadows,' some distance south of the city; that a car of the appellant, operated by electricity, through the negligence of the appellant's servants, ran into the automobile, overthrowing the same, and throwing the husband of the respondent out of the automobile, and upon the planking in the street at the point of contact with such force and violence as to produce injuries from which he died on the 27th day of October following. The appellant joined issue upon the question of its negligence, and pleaded affirmatively that the negligence of the respondent's husband contributed to his injury, and was the proximate cause thereof. This was denied by the reply. The undisputed evidence showed that the accident occurred on a planked street known as First Avenue So. The street at this point was about 36 feet in width. On either side of the street was a walk for pedestrians about four feet in width. On the outside of each walk there was a railing about three feet in height and on the inside a riser, about eight by eight in dimensions, was spiked to the plank. This riser was the only barrier between the street and the walk. The appellant was operating a double-tracked electric railway over the street. The street was used generally by the public. There was not sufficient space for an ordinary vehicle to pass between cars on the tracks, or to pass between a car and the barrier. The street was practically level and straight for a fourth to a half a mile south from the point where the accident occurred. On the day of the accident a friend of the deceased invited him and others to go to The Meadows, and procured an automobile which was operated for hire to convey them thither. The route taken by the automobile was south along what is known as First Avenue South, the narrow planked street heretofore mentioned. The deceased sat on the front seat beside the driver. The machine followed the street car for some distance, when, owing to the dust and splinters thrown up by the car, the driver turned the machine onto the east track, and ran parallel with the car for about one-fourth of a mile. The outgoing car took the west track, and the incoming car the east track. When running parallel with the car, the machine ran along the east track.

There was a sharp conflict in the evidence as to the speed at which the machine and car were running. It was variously estimatted by the witnesses at from 8 to 40 miles an hour. The driver of the machine, who was also its owner, testified that, before turning on to the east track, he asked the deceased 'if the road was clear, * * * and he looked over and said it was, that there was not a car or anything in sight'; and he further said: 'I could also see that it was; that there was nothing there in sight anywhere that I could see, and I drew out.' He further said that he ran alongside the car for a fourth of a mile; that he then saw the north-bound car approaching him about 300 or 350 yards distant; that he could have seen the north-bound car a fourth of a mile; that he was then 30 feet in the lead of the south-bound car; that, upon seeing the approaching car, he increased the speed of the machine about 20 per cent. and took a diagonal course about 150 feet; that he was then running in front of the south-bound car about 15 to 25 feet in advance of it; that he ran on that track 'a little distance' before he was struck; that he increased his speed and ran in front of the south-bound car because he did not think that he had time to drop behind it and avoid a collision with the north-bound car; that the north-bound car passed before his machine was struck by the south-bound car; that his machine was carried 80 feet by the car. It is conceded that the speed limit was 12 miles an hour. A passenger in the machine testified that the south-bound car was running 35 miles an hour; that the north-bound car was running about 30 miles an hour; that, when the driver started to turn in front of the south-bound car, the north-bound car was about 300 yards distant; that the driver turned in 12 or 15 feet ahead of the north-bound car; that the machine was fully straightened out in front of the car before it was struck; that the north-bound car could have been seen for a distance of a half mile. A witness on the south-bound car testified that the car was running very fast; that the car carried the machine 60 yards after striking it. Another witness said the car ran 75 or 100 yards after striking the machine; that the machine got in the car track 15 or 20 feet in front of the car. Still another witness said: 'When I saw him (the driver), he was straightened out, and then the street car came on him so fast that it just crashed right into him.' That the machine was traveling at the rate of 20 miles an hour, and the car at the rate of 30 miles an hour. That the car ran 100 or 150 feet after it turned the machine over. That it dragged the machine 200 feet, and carried it some 30 feet before the machine turned over. A witness for the appellant said the car 'stopped in about 100 to 125 feet from where the automobile had stopped and turned over.' The appellant offered evidence tending to show that the car was running at from 8 to 25 miles an hour; that the machine turned in front of the car on a sharp curve from 2 to 35 feet ahead of the car; that the machine ran against the riser or guard rail, slackened speed, and was then struck by the car. The only evidence as to anything the deceased said or did was that, in response to an inquiry of the driver as to whether the north-bound track was clear, 'he looked over and said that it was; * * * that there was not a car or anything in sight.' The only instruction given the driver was the statement of one Van De Vanter, who hired him, to the effect that the party wanted to go to The Meadows, and that they had 'plenty' of time. Under all the evidence the east track was clear when the machine took it. Assuming that the north-bound car could have been seen for half a mile if it was traveling at the same speed as the machine, it was not in sight when deceased looked. As we have said, the machine ran on the east track for a quarter of a mile, and then the north-bound car was from 300 to 350 yards distant.

Three errors are assigned: (1) That the court erred in denying appellant's motion for judgment at the close of the evidence; (2) that the court erred in refusing to direct a verdict for the appellant; (3) that the court erred in denying appellant's motion for a judgment notwithstanding the verdict. In legal effect the three assignments challenged the sufficiency of the evidence to support the verdict. The appellant argues that the respondent's decedent was guilty of contributory negligence which precluded her recovery. Under this head it urges (1) the chauffeur was grossly negligent; (2) under the circumstances the negligence of the chauffeur was imputable to respondent's decedent; and (3) that the evidence does not disclose any negligence on the part of the appellant. Whether the chauffeur was negligent we will not consider, except as it may appear to touch the question of the independent negligence of the deceased. The doctrine of imputable negligence has been rejected by this court. 'Where one is simply an invited guest of a voluntary driver, we do not believe the latter should be held to be such an agent of the former that the driver's negligence should be imputed to the passenger when the passenger is without fault, and has no control over the driver or his team. Especially does this seem to be right when considered in relation to one innocent of negligence, where it appears that the accident would not have happened, even with the negligence of the driver contributing, but for the primary neglect of the defendant.' Shearer v. Town of Buckley, 31 Wash. 370, 72 P. 76. We are content with the rule announced in this case. The question of imputable negligence was not pressed in the oral argument.

Touching the question of contributory negligence of the deceased, the general rule has been announced by this court in Shearer v. Town of Buckley, at page 376 of 31 Wash., at page 78 of 72 Pac., where it said: 'Whether he was...