83 Wash. 591 | Wash. | 1915
The purpose of this action was to recover damages for personal injuries and for damages to an automobile. The cause was tried to the court and a jury. The plaintiff obtained a verdict for $575. From the judgment entered upon the verdict, the defendant appeals. At appropriate times, the appellant made motions for nonsuit, directed verdict, and judgment notwithstanding the verdict.
The plaintiff resides about one and one-half miles east of Parkland, which is approximately twelve miles south of Tacoma. The plaintiff, in going to Tacoma from his ranch and in returning, passes in and out over Pacific avenue. On the evening of May 3, the plaintiff left his ranch in his Pony Tonneau Chalmers-Detroit automobile. It was a thirty horse power car, built for four people. The plaintiff knew that the spur track crossed Pacific avenue, and had frequently passed over it, but testified that at no time had he ever seen cars upon the track. The respondent had driven an automobile for about seven years. His eyesight and hearing were good. Some years before he had been in the railway service as a brakeman.
On the evening of the day mentioned, he reached the city about 6:30 p. m., and from that time until 1:30 in the morning spent the time about the business section of the city, attended the Empress theater, and started home about 1:30. The night was a little misty, dark, or cloudy. Some of the
“The first indication I had of any obstruction in the street was, I noticed a car move up in front of me. The first thing I noticed to be certain of was the white letters on the dark brown. When I saw it I did all I could to stop. I slammed on the brakes for all I was worth and tried to stop, but I was very close to them. The color of the street and the color of the box car are so very alike at night you could not tell the difference.”
Also: “I did not see them until I was right into them.” He also testified that the lights upon his automobile were burning — this was denied by other witnesses — and that by means of these lights an object could ordinarily be seen within a radius of one hundred feet. He testified that there were no lanterns in sight, and that the arc light at the corner of Delin street and Pacific avenue was not burning.
Witnesses other than those who were members of the train crew and who were disinterested, testified that the red light was on the northwest corner of the box car; that the two brakemen were on top of the car, each with a lantern. One witness testified that the arc light at the northwest corner of Twenty-seventh street and Pacific avenue was burning. This does not appear to be denied.
The headlights of the plaintiff’s automobile would light a zone of the street fifteen feet wide. The plaintiff testified that, at the time of the collision, he was going fifteen miles an hour in intermediate gear with one cylinder missing; and that he could stop the car within a distance of fifteen feet.
Whether the defendant’s positive testimony that the red light was on the northwest corner of the box car and that the two brakemen were on top of the car with lanterns and that there was a headlight on the end of the tender next to the box car is sufficient to overcome, as a matter of law, the negative testimony of the plaintiff that there were no lights or anything of that kind, we need not determine. Neither do we need to determine whether the defendant was negligent in failing to have a flagman on the ground to prevent the
The automobile was traveling fifteen miles an hour. It could be stopped within fifteen feet. The headlights upon the automobile enabled the driver to see an object within a radius of one hundred feet. The arc light at the northwest corner of Pacific avenue and Twenty-seventh street was burning. The train was moving at a speed of about four miles an hour and was practically at a standstill when the collision occurred. The automobile struck the box car approximately eight feet from the west end thereof. If these facts are true, then the end of the box car came within the zone covered by the headlights on the automobile when the automobile was more than thirty feet distant. The box car, after coming within the zone of the lights, traveled twelve or fifteen feet going three or four miles per hour. While the box car was traveling this distance, the automobile going fifteen miles per hour would travel approximately forty feet. If, then, the automobile could be stopped within a distance of fifteen feet, or even within a distance of twenty-five feet, it is vividly apparent that the plaintiff saw, or should have seen, the box car in time to have avoided the collision. The fact is that he did not see it until almost the instant of the impact. One of the plaintiff’s witnesses testified that he was two blocks away and heard the crash when the collision occurred. This seems to be one of those cases where the facts speak the law. The accident was plainly due to the respondent’s contributory negligence.
The judgment will be reversed and the cause remanded with direction to dismiss the action.
Crow, Mount, Ellis, and Fullerton, JJ., concur.