78 Wash. 537 | Wash. | 1914
The plaintiff was struck by a taxicab owned by the defendant and driven by one of its .agents, and in this action seeks redress for his injuries. There was a verdict and judgment for the plaintiff for $1,000.
The appeal presents four questions: (1) the negligence of the appellant; (2) the contributory negligence of the respondent ; (3) the correctness of the instructions; and (4) were the damages awarded excessive.
The respondent, fifty-eight years of age, a longshoreman by occupation, on the 11th day of December, 1912, at about the hour of six o’clock, a. m., was struck and knocked down by one of the appellant’s taxicabs, at a point about three feet from the curb, at the northwest point of intersection of Jackson street and Fifth avenue, in the city of Seattle. Jackson street runs east and west; the avenue runs north and south, and is forty-two feet in width between the curb lines. A double-tracked electric car line is operated upon both the street and the avenue. Main street is one block north of Jackson street. The respondent, with a companion, was walking west on Jackson street. When he was at the east rail of the east car track, he saw the light of the taxicab at Main street. He
Upon the second proposition it is equally obvious that the question of the contributory negligence of the respondent was for the jury. The respondent saw the taxicab a block to the South, and proceeded in a uniform course without hesitation or vacillation. Whether his failure to look a second time was such negligence as to prevent a recovery was for the jury. Lewis v. Seattle Taxicab Co., 72 Wash. 320, 130 Pac. 341; Hillebrant v. Manz, 71 Wash. 250, 128 Pac. 892.
Counsel for the appellant axgues that the Lewis case is not only wrong in principle, but is in conflict with Minor v. Stevens, 65 Wash. 423, 118 Pac. 313, 42 L. R. A. (N. S.) 1178; and Dimuria v. Seattle Transfer Co., 50 Wash. 633, 97 Pac. 657, 22 L. R. A. (N. S.) 471. A reading of the
The verdict may be sustained upon another ground. If the respondent was proceeding in a way that Would have indicated to a reasonably prudent man that he was unconscious of the approach of the taxicab, and the driver saw him, or in the exercise of reasonable care ought to have seen him, and observed his state of mind and discovered his peril in time to avoid striking him, and failed in this duty, he was guilty of negligence and his negligence was the proximate cause of the injury; while the negligence of the respondent, if any, was a remote cause. Hillebrant v. Manz, supra; Benson v. English Lumber Co., 71 Wash. 616, 129 Pac. 403. This phase of the case was covered by a proper instruction.
What we have said in the preceding paragraph disposes of the alleged error in one of the instructions.
The verdict and judgment were for $1,000. It is contended that the amount awarded is excessive. The plaintiff was injured on the 11th day of December, 1912. The trial began on the 22d day of April, 1913. As we have stated, the respondent was fifty-eight years of age and a longshoreman by occupation. He testified that, as a result of his injuries, he was still unable to perform hard labor. His physician testified that he received a fracture of the coronoid process of the upper portion of the ulna, where it forms a part of the elbow joint; that he sustained a sprain of the shoulder; that
The judgment is affirmed.