No. 19874. Department Two. | Wash. | Jul 15, 1926
Clarice Atkeson, six years of age, by her guardian ad litem, sued the Puget Transportation Company, a common carrier of passengers in motor busses, and the Automobile Insurance Exchange as surety on the statutory bond of the transportation company, alleging that, on January 30, 1925, at the intersection of Ainsworth and Sixth avenues in Tacoma, the driver of one of the transportation company's busses carelessly and negligently ran into and upon her and seriously and permanently injured her. It was further alleged that the driver of the bus drove across the intersection at a greater rate of speed than twelve miles an hour, and greater than proper under the circumstances and without due regard for the safety of pedestrians crossing the intersection, in violation of an ordinance of the city and the statutes of the state, causing the injuries suffered by her. The answer was a general denial. A verdict was returned for the plaintiff and, from a judgment thereon, the defendants have appealed.
[1] It is claimed that the evidence was insufficient to justify a verdict for the respondent. Ainsworth avenue, running north and south, is crossed by Sixth avenue, running east and west, about a block north of a public school on the east side of Ainsworth. The Tacoma Railway Power Company operates street cars on two tracks on Sixth avenue. The collision occurred a few minutes before nine o'clock in the morning. A street car going west stopped on the east side *554 of Ainsworth and let off a number of school children. About the same time, an east bound street car stopped to take on passengers on the west side of Ainsworth. After the west bound car crossed Ainsworth, the east bound car started to cross that avenue. The appellant's for-hire bus was following and overtaking the east bound street car, and there is some dispute or uncertainty in the evidence as to whether it stopped, or simply slowed down, as the east bound street car was receiving passengers on the west side of Ainsworth. As the street car moved across the avenue, the bus, from a position slightly behind the street car and taking a course four or five feet south of and parallel with the street car, sped up, or as one witness said, "shot by the street car" at a specified speed in excess of that fixed by both the state law and an ordinance of the city. Just at that time, the girl, on her way to school, was going south on the east sidewalk of Ainsworth, walking fast or running, as the different witnesses testified, and on reaching Sixth avenue continued her course. The street car conductor, observing the child, stopped his car in the street, but the bus driver ran into the child just after she passed beyond the front of the street car. The bus driver claimed he did not see the child. However, the street car conductor and one or two of his passengers, a person in an automobile immediately behind the bus, and at least one passenger in appellant's bus, each testified to seeing the girl before and after she got on Sixth avenue and until she was knocked down by the bus. One witness testified that, shortly afterward, the driver of the bus said that, at the time of the collision, he was thinking of instructions to beat the street car to the next crossing and pick up passengers ahead of the street car. Some of this important evidence was disputed, which presented, *555 of course, a case to be decided by the jury, and certainly not to be decided by the court as a matter of law in favor of the appellants.
[2] A question is raised with respect to an irregular verdict proposed by the jury and the manner of having it corrected under the directions of the court. The amount the jury decided the plaintiff was entitled to recover was in excess of the bonding company's contract liability. The situation was confusing to the jury and caused them at first to incorrectly express themselves as to the amount against each of the defendants. The confusion and irregularity were apparent. Thereupon the court further advised them as to the form of verdict and with the additional caution and instruction that, until it was put in proper form upon an agreement, they should still consider the case as being with them upon the merits, sent them out for further deliberation. They then brought in a verdict in proper form which was received. There was no error in the course pursued.
It is contended there was error in several of the instructions given to the jury. They need not be set out herein. Upon due consideration of them, we are satisfied the assignments are not well taken.
[3] Error is assigned upon the refusal of the court to give a requested instruction upon the subject of the responsibility and rights of a driver confronted with a sudden emergency and peril. But we find that the court did instruct the jury upon this subject in words of its own choosing, correctly and as favorably to the appellant as it could well do.
We are of the opinion that the verdict was not excessive. Affirmed.
TOLMAN, C.J., PARKER, MACKINTOSH, and MAIN, JJ., concur. *556