65 Wash. 27 | Wash. | 1911
— Action against the appellant for damages for personal injuries to respondent Rosa B. Harris, occasioned by her stepping, in the nighttime, from an unguarded and unlighted platform, maintained by appellant as a station or place to receive and discharge passengers.
The appellant, at the time of the accident, owned and operated a line of electrical railway between Seattle and Renton in King county, and for some distance upon Rainier avenue in the city of Seattle. Angeline street runs easterly and westerly and connects with Rainier avenue, which runs northerly and southerly. Angeline street terminates at the easterly line of Rainier avenue. On the westerly side of Rainier avenue opposite Angeline street the appellant’s line was double tracked. On the west side of Rainier avenue opposite the end of Angeline street is a hill or bluff, with steps to mount it. Appellant’s tracks at this point were laid in the
The appellant maintained and used two board platforms or landing places» for taking on and discharging passengers at the point opposite the end of Angeline street on the avenue, one on the westerly side of its westerly track and the other on the easterly side of its easterly track. They were almost opposite to each other, and were connected by a plank walk laid on the ties of the tracks and across the intervening space. This walk was three and one-half or four feet wide, and furnished the only convenient means of passing from one platform, to the other across the appellant’s tracks. The platforms were each about four feet wide and thirty-two feet long, and with the connecting walk were the only convenient means of reaching the graded, portion of the street by passengers. These platforms had been maintained for fourteen or fifteen years, and were constructed before the graded part of the avenue was planked. The westerly platform was only a few inches higher than the track, but the easterly platform was- several inches higher, and some sixteen or eighteen inches above the graded portion of the avenue. There were steps at each end descending to the street. There was no railing or guard of any kind on either platform. The westerly track was used for outbound cars and the easterly for inbound cars. There was no connection between either of these platforms and the sidewalks on Rainier avenue or Angeline street. The evidence shows that these platforms were maintained by the appellant for the use and convenience of its passengers, and that it would have been difficult to board or alight from the cars on the easterly track without the aid of the platform. The appellant’s roadbed does not reach the level of the street for a distance of one block to the south and several
Mrs. Harris was a passenger on one of the appellant’s outbound cars on August 24, 1909, at about nine o’clock in the evening, her destination being the point on Rainier avenue opposite Angeline street. She alighted upon the westerly platform, and after the car' had passed on, she crossed over the tracks upon the connecting board walk to the easterly platform, intending to proceed across Rainier avenue in a southeasterly direction to the sidewalk on Angeline street, and thence on that street to her home. On reaching the east platform, she took a few steps away from the track and stepped oif in the darkness, falling and spraining her ankle badly, and fracturing the ends of the ankle bones, so that she has ever since been lame, and claims that her injuries are permanent. It was very dark at the time, and she claims she fell because she could not see and did not know that the platform was above the street; that she had received no warning from any one, and there was no railing or guard of any kind to warn her or prevent her from stepping off in the darkness. There was no light of any kind maintained by the appellant upon or near either platform. The nearest city light was a block away and did not light the platform. The negligence charged is that the appellant failed to provide any means of lighting the platforms, and failed to have any guide rails or balustrade on the east platform to warn or protect its passengers landed there in the dark. The jury assessed the damages at $2,750, which the court reduced to $2,250, and judgment was entered accordingly.
It seems to be conceded that, at the time the platforms were built, the ground upon which they stand was owned by the predecessors of the appellant as a part of the right of way. Prior to the accident, this right of way was deeded by the appellant to the city of Seattle, and was at that time owned by the city as a part of Rainier avenue. The appellant contends that, inasmuch as the place where the accident occurred was
But the appellant contends that the relation of carrier and passenger had ceased to exist at the time the accident happened. It is assigned as error that the court refused to so instruct the jury. It is true that carriers by street car discharging passengers upon a public street áre not responsible for defects in the street. But that rule has no application to the facts here presented. The respondent was not discharged upon the street, but upon the platform. The platforms, though technically in the street, as were the tracks, were no part of the thoroughfare, but were maintained and used in aid of appellant’s business as a carrier. There is no difference, either in reason or in law, between such a situation and that of a railroad company maintaining a depot or station. The authorities are practically uniform that the
Counsel complains that the court instructed the jury upon the theory that the two platforms and the connecting walk were maintained by the appellant as a station. We think this theory was the correct one under the evidence. It is true the appellant maintained no depot or waiting room at this point. It did, however, maintain these platforms and the connecting walk, and the evidence is clear that the passengers on outbound cars for Angeline street, though alighting on the west platform must use both platforms to reach the street, and were expected to do so. They were both necessarily used by passengers from Angeline street, whether taking cars or leaving them. They were in no just sense independent structures,, as argued by the appellant.
It is also contended that the court erred in instructing the jury that it is the duty of a common carrier of passengers for hire to exercise the highest degree of caré consistent with
The appellant claims that the court erred in refusing to instruct the jury that if Mrs. Harris “had knowledge, or could have had knowledge by the exercise of ordinary care or by having gotten off or on the planking previous to the time of the accident, of the difference in elevation of the planking and the street,” and stepped off without making allowance for such difference, causing the injury,, then she could not recover. We think the instruction was properly refused. The court instructed the jury fully and faultlessly on the question of contributory negligence, which was all the appellant could ask. The evidence showed that Mrs. Harris had never taken a car at this point, and had gotten off there only twice, one time two years before the accident, and the other one year before, and both times in the daylight. There .was no evidence that she had ever seen the place at any other time. There was no error in the refusal to make this evidence the basis of a specific instruction, since it was amply covered by the instruction given. Other instructions are complained of, but they all relate to the matters which we have disposed of, and require no further comment.
At the beginning of the trial, a wooden model was intro
A motion for new trial was interposed, mainly on the ground of newly discovered evidence. The evidence relied upon was the discovery of the fact that Mrs. Harris, at the time of the accident, wore bifocal glasses. At the trial she testified that she was then wearing the same glasses that she wore when injured. No effort was then made to discover their quality or construction. In any event, the character of the glasses was immaterial, since the evidence showed that the place of the accident was at the time in almost total darkness. Such evidence probably would not, and certainly should not, have changed the verdict. Its discovery was not ground for a new trial. 29 Cyc. 900, 901; Leschi v. Territory, 1 Wash. Ter. 13.
Lastly, it is claimed that the judgment is excessive. The verdict was for $2,750. On the hearing of the motion for a new trial the court reduced it to $2,250. The evidence showed that Mrs. Harris suffered intense pain; that she was helpless
The judgment is affirmed.
Dunbar, C. J., Crow, Chadwick, and Morris, JJ., concur.