95 Wash. 160 | Wash. | 1917
The plaintiff, James B. Adair, seeks recovery of damages for personal injuries which he claims resulted to him from the negligence of the defendant, Archie McNeil while driving an automobile, as the agent of the defendant Elizabeth A. McNeil, upon a public street of Seattle. In response to a motion made by counsel for the defendants at the close of the evidence upon the trial, the superior court rendered a judgment of dismissal in their favor.
Respondent Elizabeth A. McNeil was the owner of the automobile in question at the time appellant was injured. Archie McNeil is her son, and was then driving the automobile for the family. The accident occurred near the southeast corner of Melrose avenue and Olive street, which intersect each other at an angle of about sixty degrees, Melrose avenue running north and south, and Olive street running northeasterly and southwesterly. Both streets are paved. Shortly after dark, during the evening of the day of the accident, appellant was walking across Melrose avenue in a northeasterly direction, along or very near the line of the sidewalk on the southerly side of Olive street, going from the business district of the city to his home. There was then no street light at this street intersection, so there was only such light as may have been furnished by street lights at other street intersections a half or whole block distant. Appellant had left the sidewalk at the southwest corner at the street intersection and walked across the paved driveway to a point about ten feet from the sidewalk at the southeast corner of the street intersection, when he was struck by the left front lamp of the automobile driven by Archie McNeil, knocked down and rendered unconscious. He seems to have no memory of what immediately preceded his being knocked down, other than that he was walking across the paved driveway of the street in the usual manner of a pedestrian. He may not have been proceeding along a direct line of the southerly sidewalk of Olive street, but, if not, he was a little to the north thereof towards the middle of Olive street.
“It shall be unlawful for any person to ride, drive or propel any automobile, . . . along, over or across any street, alley,, avenue, boulevard, park, drive or other public place in the city, at an excessive or unreasonable rate of speed, or at such a rate of speed as will endanger the lives, limbs or property of pedestrians or others using such streets, or other public places, and in no event at a rate of speed greater than twenty miles an hour, ... or to pass or cross any street intersection or round any corner at a greater rate of speed than eight miles an hour, . . .” Ordinance No. 33,413.
We are constrained to hold, in view of these facts, that the trial court erred in taking the case from the jury and deciding the questions of respondents’ negligence and' appellant’s contributory negligence as matters of law. The argument of counsel for respondents seems to be, in substance, that they were not guilty of negligence if the automobile was proceeding at a rate of speed less than eight miles an hour when it reached the southerly line of the. street intersection, and that appellant was guilty of contributory negligence because he did not look for the approach of an automobile or other vehicle along Melrose avenue upon leaving the sidewalk at the southwest corner of the street intersection and proceeding across the paved roadway. We think these contentions are untenable, in view of the law which requires drivers of- automobiles to look out for pedestrians upon street crossings as much as it requires pedestrians upon street crossings to look out for automobiles. This is a different question from that of the degree of care required of a pedestrian to look out for and avoid street cars and railway trains, which run upon fixed tracks and are less easily controlled because of their weight than 'automobiles. It is evident that the width of the driveway was such as to furnish ample room for the automobile to pass appellant without injuring him, and the jury might well have believed that
“On the question of the degree of care required of persons while crossing public streets used by passing vehicles, the appellant cites from this and other courts a number of cases of injury caused by railroad trains and passing street cars; but it is at once apparent that these cases can hardly be said to be in point except as they may state general principles. The degree of care required of a pedestrian crossing a railroad or street car track is much higher than is the care required of one crossing an ordinary public street where only passing teams or automobiles are to be encountered. Railroad trains and street cars must move on a fixed track, and the track is, for that reason, at once a warning of danger and a marking of the zone of safety; the cars are heavy and cumbersome and cannot turn aside to avoid a collision or be brought quickly to a stop when once in motion; hence the persons directing the movements of such cars are limited in their powers to protect persons found*165 upon the track. But this is not true with reference to ordinary vehicles. The driver of these has freedom of choice as to the part of the street he will drive them upon; they can be turned quickly to one side or the other, and are capable of easy control otherwise. As to these, therefore, the footman may rely'on the presumption that, so long as he occupies one place or pursues a given course, he need not be run into, and to fail to keep a lookout for the approach of stich vehicles is not necessarily want of care. The degree of care required of such a person of course varies with the circumstances.”
See, also, Hillebrant v. Manz, 71 Wash. 250, 128 Pac. 892; Chase v. Seattle Taxicab & Transfer Co., 78 Wash. 537, 139 Pac. 499; Franey v. Seattle Taxicab Co., 80 Wash. 396, 141 Pac. 890; Johnson v. Johnson, 85 Wash. 18, 147 Pac. 649; Stephenson v. Parton, 89 Wash. 653, 155 Pac. 147, and Morrison v. Conley Taxicab Co., 94 Wash. 436, 162 Pac. 365, lend support to our conclusion.
Counsel for respondents seem to argue that, because the automobile was moving at a speed of less than eight miles per hour when it reached the southerly line of the street intersection, its driver was, therefore, free from negligence. Assuming, for argument, that the evidence conclusively shows that the speed of the automobile had been reduced to less than eight miles per hour at this point, still we are unable to see how that would, as a matter of law, free Archie McNeil, its driver, from negligence. This would seem to be true aside from the provisions of the ordinance. But while the provisions of the ordinance limit the speed upon street intersections to eight miles per hour, that is only the extreme speed permitted under any circumstances by the terms of the ordinance. It is also provided therein that it shall be unlawful to drive an automobile at such places “at • an excessive or unreasonable rate of speed or at such rate of speed as will injure the lives, limbs or property of pedestrians or others using such streets or public places.” It seems quite plain to us that, under all the circumstances here shown, it
We conclude the judgment must be reversed and appellant awarded a new trial. It is so ordered.
Mount, Holcomb, and Fullerton, JJ., concur.