26 Wash. 606 | Wash. | 1901
Tlie opinion of the court was delivered by
The respondent is the% owner and operator of a system of street railways in the city of Seattle, and on the 11th day of November, 1900, was engaged in the operation of a line of cars along Madison street, in said city. The westerly end of Madison street is near the waters of Puget Sound, from which point said street proceeds in a northeasterly course, and ascends, for a distance of many blocks, the sloping side of a very high hill. The respondent’s cars are moved up and down the slope of said hill along Madison street by means of an underground cable. Madison street is crossed at right angles by the following parallel streets, among others, viz., Second avenue, Third avenue, and Fourth avenue. Those portions •of Madison street included in its intersections with said streets at their several places of crossing are practically level, while those portions which lie between said intersections ascend the hill by a very steep grade. Of the streets crossing Madison street above named, Second avenue is the most westerly, and is nearest the westerly end of Madison
It is insisted by respondent that the ear which ascended the Madison street hill, being propelled by a cable, could not with safety to its passengers, be released from the cable until the car had cleared the incline of the hill, and stood upon the level of the Third avenue crossing. The grade of the hill between Second and Third avenues is about twenty per cent., and it is urged that it would be hazardous if a gripman should release the car from the cable at any point on the incline, since it might not be possible by means of brakes to prevent the car from retreating down the hill. The car was apparently stopped as quickly as possible after it reached the level of the Third avenue crossing, but before it had safely landed upon the level its front end reached the point where appellant was crossing the track, and struck him. The speed of the car could not be checked, since it must follow the speed of the running cable at that point. Respondent concludes from the above stated conditions that no negligence can be attached to it for not check* ing the speed, or for not sooner stopping the car. We are not at this time prepared to say as a matter of law that respondent’s rights are such as may authorize it to maintain a system of operating cars that will prevent it from safely stopping the cars at any point within the distance of an entire block, or at a point where they are in the act of entering upon the level of a street crossing. Respondent’s rights in the street are in common with those of other travelers. Street cars are, in the main, governed by the same rules as other vehicles on the street, and their owners have an equal right with the traveling public to use the street. They have no proprietary right to any part of the
It has already been said that there was evidence to the effect that no gong was sounded by the operator of this ear. Of the number of appellant’s witnesses who testified, only one testified positively that such was the fact. Yo other evidence was before the jury upon that subject. Respondent’s counsel therefore frankly and honorably concede that for the purposes of this appeal it must be considered that no gong was sounded. It was held in Towner v. Brooklyn Heights R. R. Co., 60 N. Y. Supp. 289, that the car company owes a duty to the pedestrian at a street crossing to give some warning of the approach of the car. Again, the same court held in Huber v. Nassau Electric R. R. Co., 48 N. Y. Supp. 38, that where the plaintiff testified that he saw the car 300 feet away, it was not negligence to fail to ring the gong, since the only object of the ringing of the gong or bell is to apprise travelers of the approach of the car. "See, also, Schulman v. Houston, etc., R. R. Co., supra. There being some evidence in this case that the gong did not ring, it became the province of the jury to determine what the fact was in that particular, and also whether such failure to ring constituted negligence under all the facts of the case when considered together. Consolidated Traction Co. v. Scott, supra. Conceding that the record as it stands shows that no gong was rung, still respondent urges that appellant was so palpably guilty of gross contributory negligence that, as a matter of law, it should be held he cannot recover. It is true, it does not appear that he looked or listened "for the approach of a car, and in turning to' cross the respondent’s track he did not turn in the direction from which he knew a car upon that track must come. It has been held by this court that failure to- look or listen
Prom the views heretofore expressed, it follows that we think the acts charged to appellant here as contributory negligence, when considered with all the facts shown by the record, are not such'as must necessarily lead to but one conclusion in the minds of reasonable men. We, therefore, think the court erred in taking the case from the jury and in refusing to grant the motion for a new trial.
The judgment is reversed, and the cause remanded, with instructions to the lower court to grant a new trial.
Peavis, C. J., and White, Puhlerton, Anders, Mount and Dunbar, JJ., concur.