114 Wash. 234 | Wash. | 1921
— Plaintiff sued to recover damages for injuries to his automobile truck resulting when it collided with one of defendant’s street cars. The jury returned a verdict for plaintiff. Defendant thereupon moved for judgment notwithstanding the verdict and for a new trial. The court denied the motion for judgment notwithstanding the verdict, and granted the motion for a new trial upon the stated ground that, in
A summary of the facts out of which the action grew is as follows: On, and for several days prior to, April 22, 1919, appellant had been engaged in hauling dirt or gravel in his truck from a steam shovel at a point on Forty-fifth street, northeast, in the city of Seattle, for use in the construction of a bridge; and on the day in question, at about one o’clock in the afternoon, he was driving his truck north on the east side of Eleventh avenue, northeast, for another load of material. His practice had been, upon getting a load, to drive east on east Forty-fifth street to Eleventh avenue, thence south to the approach to the new bridge at Tenth avenue northeast. Returning in his empty truck for another load, he would go north on Eleventh avenue and west on east Forty-fifth street to the gravel pit. In making these trips, he passed, about every half hour, the street intersection where the accident occurred.
He testified that he. had been accustomed, as he came up Eleventh avenue, to look between buildings across lots toward east Forty-fifth street, to see whether any street car or automobiles were coming; that, just before the accident occurred, he so looked and saw no car, he at that time being some distance down on Eleventh avenue; that, upon coming into the street intersection, he looked once more — this time west on east Forty-fifth street — and saw a street car,
The legal rate of speed for the street car was twenty miles an hour. Appellant claims that it was traveling at a high or unusual rate of speed. Supporting this contention, appellant attempts to show the relative distance of the two vehicles from the point of collision, and having given the speed of the truck as ten miles an hour, points to the conclusion that the car must therefore have been traveling at a rate of speed in excess of that permitted by the city ordinance, and that such violation of the ordinance was the proximate cause of the accident. Upon appellant’s assumption, the street car had about four times as great a distance to cover, in order to reach the point of collision, as did the truck, which was approaching at a speed of ten miles an hour. This suggests that the street car was approaching at a speed of about forty miles an hour. The street car had, however, come to a full stop at Tenth avenue, the first street west of Eleventh avenue; and when the motorman ' started it again, he testified that he “coasted” the distance from Tenth avenue to Eleventh avenue.
One Mr. Crim, a disinterested eye-witness of the accident, testified that, just prior thereto, the street car was traveling at about eight miles an hour; that the car was then about its own length (forty feet) from the point of collision, and the truck was not yet on the tracks, but approaching them from a point about on a line with the sidewalk. This witness, as well as the motorman and the conductor, testified that appellant “cut the corner,” or failed to go around the center of the intersection of the two streets, in compliance with the city ordinance, as he should have done in making the turn' into east Forty-fifth street where he intended to go.
' Appellant admitted, upon cross-examination, that he could not accurately estimate the speed at which the car was traveling, but said that when he got into the street intersection he saw that the car was coming very fast; that he did not realize that it was coming so fast until he got very close to the car track and the motorman began to ring his bell; that he was observing the car all the time. He also testified that he could
Cross-appellant cites the cases of Bernhard v. Reeves, 6 Wash. 424, 33 Pac. 873; Larson v. American Bridge Co., 40 Wash. 224, 82 Pac. 294, 111 Am. St. 904; Dyer v. Middle Kittitas Irr. Dist., 40 Wash. 238, 82 Pac. 301; Roe v. Standard Furniture Co., 41 Wash. 546, 83 Pac. 1109; Paich v. Northern Pac. R. Co., 82 Wash. 581, 144 Pac. 919; Johnston v. Nichols, 83 Wash. 394, 145 Pac. 417; Devitt v. Puget Sound T., L. & P. Co., 106 Wash. 449, 180 Pac. 483; and Lauridsen v. Bowden, Gazzam & Arnold, 107 Wash. 310, 181 Pac. 885, as determining that, under such facts as are here shown, it should be held, as a matter of law, that appellant was guilty of such contributory negligence as to bar his recovery. Cross-appellant further contends that, under the facts, appellant violated the city ordinance in failing to go around the center of the intersection of the streets, and that such violation of positive law rendered him guilty of negligence per se, by reason of which he cannot recover.
There is nothing in the situation shown under the facts in this case that renders the violation of the traffic ordinance by appellant, in failing to round the center of the intersection of the streets, the proximate cause of the accident. This case is very similar in its facts to the recent case of Nabours v. Seattle, 113 Wash. 557, 194 Pac. 800, wherein we held that we could not say, as a matter of law, that plaintiff was
Although the trial court was somewhat vague in the reason upon which he granted the new trial, we are of the opinion that, if he felt the facts which he had heard in the trial were such as to not justify the verdict returned by the jury, he could properly exercise his discretion in granting a new trial. Conceiving that that was what the trial court undoubtedly intended, and no more, and, since the questions-of fact are very close, we think the trial court was justified in granting a new trial, and will affirm the order granting a new trial.
Affirmed.
Parker, C. J., Mackintosh, and Fullerton, JJ., concur.