108 Wash. 127 | Wash. | 1919
The purpose of this action was to recover damages for personal injuries. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiffs. Motions for judgment notwithstanding the verdict and, in the alternative, for a new trial were made and overruled. Judgment was entered upon the verdict, from which the defendants appeal.
The undisputed facts, and the facts which the jury had a right to find from the evidence, may be stated as follows: The respondent H. R. Clark was a motorcycle policeman in the employ of the city of Seattle. On the evening of May 16,1917, at about 9 o ’clock p. m., while he was responding to an emergency call in the line of his duty, the motorcycle upon which he was riding collided with the Ford roadster automobile, near the northwest corner of the intersection of Fourth avenue and Bell street, driven by the appellant Alex C. Wilson.
The two streets mentioned intersect at right angles. Bell street is thirty-eight feet, and Fourth avenue fifty-four feet from curb to curb. Before reaching this
As the appellant came to the intersection, the motorcycle was approximately 250 feet south of the south line of Bell street. The evidence on the part of the respondent is that, after the appellant entered the intersection, he stopped or slowed his automobile as though he were going to stop, then started, and again stopped and started. The respondent construed the stopping of the automobile as an invitation to pass in front, and the starting again as an invitation to pass at the rear. When the appellant stopped the second time, the respondent swung his motorcycle to pass in front, believing that the automobile would remain standing. It again started, the appellant at that time making an effort to turn to the right down Fourth avenue, and the collision occurred a little to the north
' At the time the collision occurred, the motorcycle was traveling rapidly and hit the automobile a heavy blow. The respondent was thrown from the motorcycle and sustained the injuries for which he seeks recovery in this action.
The appellant first contends that the evidence fails to show negligence on his part. This being an action tried to a jury, we are not concerned with the evidence further than to inquire whether there was substantial evidence from which the jury might have found negligence. If the appellant, on entering the intersection, started and stopped, as the respondent testified that he did, there was certainly ample evidence to take the question of negligence to the jury. As the appellant entered the intersection, the motorcycle was at least 150 feet away and was traveling at the rate of thirty-five or forty miles per hour. Had the appellant proceeded across without halting, it is clear that he would have crossed the intersection before the arrival of the motorcycle. Had he stopped and remained still, the motorcycle would have passed and the collision would have been avoided.
• The second point is that the respondent was guilty of contributory negligence. There is no merit in this claim. At least, under the evidence, it was a question for the jury. Under the traffic ordinances of the city of "Seattle, the motorcycle policeman had the right of way at the crossing, and was not limited to the speed prescribed for ordinary vehicles. Even though he had the right of way and was not subject to the speed, regula
Finally, it is claimed that the trial court committed error in submitting the case to the jury. The instruction to which the objection is made may be divided into two parts, in the first of which the jury were told that, if they found from the evidence that the appellant, before entering? the intersection, saw or heard, or, acting as a reasonably prudent man, could have seen
In the second part of the instruction the jury were told that, if the appellant, after entering the intersection and observing the rapid approach of the plaintiff, stopped or slowed down his automobile near the east side of Fourth avenue for the purpose of allowing the motorcycle to pass in front of him, and that respondent, in plain view and sight of the appellant, changed his course for that purpose, then, in that case, it would be negligence on the part of appellant to start his automobile and drive in front of respondent. If the appellant stopped or slowed down after entering the intersection, for the purpose of allowing the motorcycle to pass in front, and the driver of the motorcycle changed his course for that purpose, then it certainly would be negligence for the driver of the automobile to again start his machine and drive in front of the motorcycle. This is not only a correct rule of law, but is a sound rule of common sense. The instruction, in
The judgment will be affirmed.
Holcomb, C. J., Tolman, Mackintosh, and Mitchell, JJ., concur.