Ziomko v. Puget Sound Elec. Ry.

• Citation: 112 Wash. 426,192 P. 1009
• Decision Date: 13 September 1920
• Docket Number: 15728.
• Court: Washington Supreme Court
• Parties: ZIOMKO v. PUGET SOUND ELECTRIC RY.

192 P. 1009

112 Wash. 426

ZIOMKO v. PUGET SOUND ELECTRIC RY.

No. 15728.

Supreme Court of Washington

September 13, 1920

Department 2.

Appeal from Superior Court, King County; John S. Jurey, Judge.

Action by M. E. Ziomko against the Puget Sound Electric Railway. From a judgment for plaintiff, defendant appeals. Affirmed.

James B. Howe and Hugh A. Tait, both of Seattle for appellant.

Edwin James Brown and John C. Bowen, both of Seattle, for respondent.

FULLERTON J.

This is an appeal from a judgment entered in favor of the respondent and against the appellant in an action brought to recover for personal injuries. As in all such cases there are in the record certain facts which are not in dispute. The appellant owns and operates an interurban railway between the city of Seattle and the city of Renton. As the passenger trains of the appellant leave Seattle, they are operated in the usual way until they enter Main street in Renton. At this point the trains are switched onto a Y, where they are turned and brought back to the main track, and from thence they are backed to the terminal depot in Renton, a distance of some 400 or 500 feet. Main street is paved between the Y and the terminal depot. The street between these points extends north and south. The pavement is 15 5/10 feet in width between the east rail of the appellant's railway track and its outer edge, at which place it terminates with the usual curb. The accident out of which the controversy arises happened shortly prior to 6 o'clock in the evening of September 11, 1916 at a place between the Y and the depot. The respondent at that time was riding in a two-wheeled cart drawn by a single horse.

The evidence as to the manner and cause of the action is divergent. The respondent's version is that at the time of the accident he was driving from his home to the depot at Renton for the purpose of meeting his wife whom he expected to arrive there at about that hour on one of the appellant's trains; that when he reached Main street while on his way be proceeded to drive at a walk on that part of the paved way lying to the east of the railway tracks; that he then saw a passenger train, consisting of a motor coach and a trailer standing on the Y mentioned; that as he proceeded on his way and was approaching the depot he noticed an automobile parked on that side of the street between the curb and the railway tracks; that he was then some 200 feet from the automobile, and, realizing that he would have to turn onto the railway tracks to pass around it, looked back to see if a train was approaching and saw none; that as he came near the automobile he turned his horse to the left with the intention of passing around it, when he again looked for an approaching train and saw a train almost upon him; that he immediately stopped his horse and backed from the track, and, while he succeeded in clearing the horse from the front of the train he was not so successful with the cart, which was struck by the car and one of its wheels crushed; the jolt throwing him to the pavement and causing the injuries for which he sued. His testimony further tended to show that the train as it approached was running backwards; that it was drifting, that is, moving without the application of power, and that no bell was rung, whistle blown, or gong sounded to give warning of its approach. His evidence also tended to show that the operators of the train had notice of his perilous situation in time to have stopped the train before striking him.

The appellant's version of the happening of the accident is that as its train approached the respondent he was driving on the side of the track between it and the curb, leaving ample room for the train to pass him in the clear; that the train reached him before he had reached the parked automobile standing in the roadway; that the front end thereof passed both the cart and the horse before the cart was struck, and that the striking was caused because the horse became frightened, turned around and backed the cart into the moving train.

After the return of the verdict of the jury, and before judgment had been entered thereon, the appellant moved for judgment notwithstanding the verdict, and, in the alternative, for a new trial. The trial court denied the motion, and the first error assigned is the refusal of the court to set aside the verdict and enter a judgment for the appellant.

In support of this assignment the appellant contends that the respondent was guilty of contributory negligence as matter of law. The contention is based on the fact that the respondent turned his horse upon the railway tracks when he reached the parked automobile before looking for an approaching train. Many cases from this court are called to our attention, where somewhat similar acts on the part of pedestrians and vehicle drivers were held to be so, and argue with force that respondent's acts bring him within the rule. But we think it unnecessary to enter upon a review of the cases. Whether the court can say in a particular case the injured party was guilty of negligence as matter of law must depend upon the facts of the particular case. Precedents are usually but illustrative of the general principle, and are authoritative only where the facts are like or so far similar as to be indistinguishable. Here there was an element not found in the cited cases. It will be remembered that the respondent, while only a short distance from the place where he made the turn towards the tracks and when he discovered that such a turn was going to be necessary, did look for an approaching train. It must be remembered also that the service in which the appellant's trains were engaged was in the nature of a street car service, and that in such a service the rule of stop, look, and listen before entering upon its tracks is not imperatively necessary, as it is when crossing or entering upon the tracks of a railway engaged in a through service where stops are made only at fixed stations. The question whether the respondent was guilty of contributory negligence was, we think, a question on which reasonable minds might reasonably differ, and being so, it was a question for the jury, not the court.

Among the grounds upon which the motion for a new trial was based was the statutory ground of insufficiency of the evidence to justify the verdict, and it is urged that the trial court erred in refusing to grant a new trial on this ground. When the question of the sufficiency of the evidence to justify a verdict is presented to a trial court, that court is undoubtedly warranted, under our practice, in viewing the question from a twofold aspect; that is to say, it may inquire whether the verdict is supported by evidence in kind or quantity such as the nature of the case requires, or it may inquire into the preponderance of the evidence, and grant or refuse to grant a new trial as its conclusions thereon dictate. While the rule is not the same in all jurisdictions it is our rule that we will review a judgment founded on the verdict of a jury for insufficiency of the evidence only in a case of the first sort mentioned. If, for illustration, the trial court should enter a judgment upon the verdict of a jury founded on the testimony of one witness only, where the law required two, or required the witness to be corroborated, or should enter a judgment on a verdict founded on evidence of an oral contract where the law required the contract to be in writing, plainly this court on appeal would reverse the judgment, even though the objection below was in the form of a motion for a new trial on the ground of insufficiency of the evidence to sustain the verdict. But where the...