73 Wash. 529 | Wash. | 1913
The Seattle Electric Company, a corporation, owns and operates a double track cable car line on Yesler street, in the city of Seattle. In October, 1911, a deep excavation had been made in the street under the car tracks for the purpose of constructing improvements. The cars were operated upon the tracks, which were supported by heavy timbers. About midnight on October 31, 1911, the plaintiff, Earl Augerson, drove an automobile down Yesler street on a heavy grade, and ran into the excavation. After being ditched, the automobile rested' at an angle of 45 degrees, with one front wheel pinioned under one of the timbers, while its rear wheels extended above the tracks and obstructed the street cars. The automobile was taken from the excavation by defendant’s servants in the manner hereinafter stated. The automobile then belonged to one F. J. McCurdy, who, on December 6, 1911, sold it to plaintiff, and assigned to plaintiff his claim for damages against the Seattle Electric Company. Thereupon plaintiff, who was a minor, commenced this action by his guardian ad litem, against the Seattle Electric Company, to recover damages for personal injuries sustained by himself, and also to recover damages for injuries to the automobile. The trial judge, as a matter of law, held plaintiff guilty of contributory negligence at the time he drove the automobile into the excavation, but submitted the case to a jury upon the issue whether defendant was afterwards guilty of negligence in removing the automobile from the excava
The only question presented is whether the trial judge erred in denying appellant’s motion for judgment notwithstanding the verdict. As the plaintiff has not appealed, that portion of the order of the trial court in part sustaining appellant’s challenge to the sufficiency of the evidence on the ground that respondent was guilty of contributory negligence has become the law of the case and cannot be reviewed. In Winningham v. Philbrick, 56 Wash. 38, 105 Pac. 144, this court said:
“Respondent, however, has not appealed, and it has long since become the established rule in this court that we will not review any order or ruling made by the court below unless the appeal is presented by the party aggrieved. If, therefore, respondent desired this court to review the ruling of the court below upon the questions submitted in his brief and upon which the ruling below was adverse to him, he should have taken a cross-appeal, failing which the rulings thereon of the court below become the law of this case, and we are precluded from reviewing them.”
The trial judge instructed the jury that the only questions before them were whether the automobile was further damaged by taking it out of the excavation, and if so, whether such damage resulted from appellant’s negligence. On this record we are compelled to approach the consideration of this appeal assuming that appellant was guilty of no negligence before the automobile went into the excavation, and that it can only be held liable, if at all, for such damages or injuries as may have been inflicted thereafter upon the automobile as the proximate result of its negligence. Taking this view of the case, we find no evidence sufficient to support a finding of negligence on appellant’s part. Immediately-
“Q. Didn’t take any part in it at all? A. Only to refuse to let them hitch their cable to my differential. Q. How is that? A. I refused to let them hitch their cable to my differential on the car. Q. And they hitched it somewhere else, then? A. They slid it to the rear spring, yes, sir.”
One Westedt, a police officer and a disinterested witness who was present, gave the following testimony which stands undisputed:
“Q. Now, if I understand you correctly, you made the proposition-to this young man that the cable car would pull him out? A. Yes, sir, he asked my advice what I thought, was the best way to get him out of there. Q. And he agreed to that, did he? A. Yes, sir, he agreed to it, in fact he superintended the job when putting the hook on the axle, and told them not to do it and put it on the spring, which they did.”
The judgment is reversed, and the cause is remanded with instructions to dismiss.
Mount, Chadwick, and Parker, JJ., concur.