85 Wash. 105 | Wash. | 1915
Action by M. A. Daugherty and Frank Daugherty, by M. A. Daugherty, his guardian, against Metropolitan Motor Car Company, a corporation, and Bruce A. Griggs, to recover damages for personal injuries sustained by Frank Daugherty. From a judgment in plaintiffs’ favor, the defendants have appealed.
The cause, which was tried to the court sitting without a jury, is before us for trial de novo, and we find it necessary to consider only appellants’ contention that the trial judge erred in entering judgment in respondents’ favor. The preponderance of the evidence shows that the respondent Frank Daugherty, who sues by his guardian, was on April 29, 1913, about fourteen years of age; that for some years prior thereto he had been engaged in selling newspapers on the streets of Seattle; that for one year he had a news stand at the southwest corner of Marion street and Second avenue; that Marion street runs east and west, while Second avenue runs north and south; that on April 29, 1913, the appellant Bruce A. Griggs, in charge of an automobile owned by the appellant Metropolitan Motor Car Company, was driving south on the west side of Second avenue, traveling six to eight miles per hour; that after he had crossed the intersection of Marion street and Second avenue and was some little distance south of the crossing, the respondent Frank Daugherty suddenly darted from behind his news stand, ran diagonally across Second avenue toward the southeast, collided with appellant’s automobile, and was injured. The evidence shows that one George W. Engler, who was distributing afternoon papers to newsboys and news stands, was driving a news cart north on the east side of Second avenue; that he intended to deliver some papers to Frank Daugherty and also present him with a ball which he had earned as a premium; that as he came up the street he blew a whistle to attract the attention of Daugherty, who immediately ran across the street in a diagonal direction to meet him, and collided with appellant’s automobile; that the appellant
Respondents contend that the appellant Griggs was neg-ligent in driving the automobile carelessly and at a rate of speed in excess of that allowed by the city ordinances. One witness testified that in his opinion appellant was driving about twenty-five miles per hour, but other witnesses fixed his rate of speed approximately at six to ten miles per hour. Had the cause been tried by a jury, and had the jury found appellant was driving at an unlawful rate of speed, the testimony of the single witness above mentioned would be sufficient to sustain the verdict, and we would not be warranted in disturbing that finding. But the action is before us for trial de novo, and although we ordinarily adopt the findings of the trial judge, we are not compelled to do so, if we conclude they are not supported by a preponderance of the evidence. Our conclusion is that the appellant was not driving at an excessive or dangerous rate of speed. He stopped the automobile within a very few feet, which he could not have done except when driving slowly with the machine under control.
Appellants contend that the respondent Frank Daugherty was guilty of negligence on his part, and that his negligence was the sole and proximate cause of the accident. The evidence shows that respondent was accustomed to being on the business streets of Seattle selling papers, caring for himself, and looking out for automobiles. He testified on his direct examination, that he had been selling papers at Second avenue and Marion street for about one year; that Mr. Engler whistled for him; that he jumped off the curb and started across the street between a walk and a run, and that the auto struck him, which was all he knew.. On cross-examination, he testified that he jumped off the curb and
“If the conceded right of way means anything at all, it puts the necessity of continuous observation and avoidance of injury upon the driver of the automobile when approaching a crossing just as the necessity of the case puts the same higher degree of care upon the pedestrian at other places than at crossings.”
From remarks made by the trial judge, the indications are that he thought the last clear chance doctrine should be applied, and that respondent was entitled to that chance. The facts proven do not justify any application of that doctrine. The evidence indicates that appellant Griggs did not see respondent until he, while running, was about to collide with the machine, and it is clearly proven to our satisfaction that appellant Griggs did everything he could, or that could be
The judgment is reversed, and the cause is remanded with instructions to dismiss.
Mount, Main, and Ellis, JJ., concur.