118 Wash. 73 | Wash. | 1921
— This is a personal injury action, brought by W. E. Hoffman against Jens L. Hansen and Hansen Bread Company. The defendants have appealed from a judgment against them.
Many of the facts are in dispute, but there is ample evidence to show that the accident causing the injuries happened February 2, 1920, before daylight. The respondent was a motorman operating an electric street car for the city of Seattle out of its car barns, situated on the east side of Fifth avenue north and north of its intersection with Republican street, the two streets crossing at right angles. His run for the day commenced from the car barns at 6 a. m. He was required to register in not less than ten minutes before his service commenced (he could register in as much earlier as he wished), and after registering in until
It is contended the respondent was under the workmen’s compensation act at the time he was injured, and that, if he was not, the trial court erred in not holding he could not maintain this action without hav
“Workman means every person in this state, who, after September 30, 1911, is engaged in the employment of an employer carrying on or conducting any of the industries scheduled or classified in § 6604-4, whether by way of manual labor or otherwise, and whether upon the premises or at the plant or, he being in the course of his employment, away from the plant of his employer: Provided, however, that if the injury to a workman occurring away from the plant of his employer is due to the negligence or wrong of another not in the same employ, the injured workman, or if death result from his injury, his widow, children, or dependents, as the case may be, shall elect whether to take under this act or seek a remedy against such other, such election to be in advance of any suit under this section; . . .”
Situated and engaged as he was at the time of the accident, it cannot be said, upon a liberal construction of the act, that he was upon the premises or at the plant of his employer. He was upon the sidewalk and street, in a sense entirely disassociated from the.street railroad and its service. Nor can it be said that, while thus away from the plant of his employer, he was in the course of his employment. At the time he was injured, he was engaged in the exercise or pastime of walking, and was no more in the course of his employment than if, at that time, he had been away engaged in the exercise or pastime of boating or automobiling. The complaint being that his injuries were due to the negligence or wrong of another, who it appears was not in the same employ, and it appearing
It is claimed the challenge of the defendants to the sufficiency of the evidence and a motion for judgment notwithstanding the verdict should not have been denied. The contention involves the defense of contributory negligence, and it is argued that,' as the accident occurred between street intersections, the respondent assumed the risk, and that the driver of appellant’s automobile had the absolute right of way. The argument goes too far. The case of Crowl v. West Coast Steel Co., 109 Wash. 426, 186 Pac. 866, is relied on by appellants. That case is not in point. It considers an ordinance of Tacoma that differs materially from the one in this case. The one here provides: “Pedestrians shall have the right-of-way over vehicles at street intersections and crossings; vehicles the right-of-way over pedestrians between street intersections and crossings.” Of this ordinance it was said in the Crowl v. West Coast Steel Co. case, quoting from the case of Johnson v. Johnson, 85 Wash. 18, 147 Pac. 649:
“ ‘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.’ ”
The matter of absolute right is not involved here, but only the degree of care exacted.
It is further claimed a new trial should have been granted for the reasons: (1) Newly discovered evidence to the effect that the respondent, in 1904, had been convicted of a crime. After that date, and for eleven years, it appears that respondent had been steadily engaged as a street railroad employee in Seattle. This court has held a new trial should not be granted for newly discovered evidence which merely goes to the credibility of the opposite party as a witness, rather than to the right of recovery. Harvey v. Ivory, 35 Wash. 397, 77 Pac. 725. “This court has several times held that, where the only purpose of newly discovered evidence is to impeach or discredit evidence produced at the trial, a new trial will be denied.” Orr v. Schwager & Nettleton, 74 Wash. 631, 134 Pac. 501. See, also, Armstrong v. Yakima Hotel Co., 75 Wash. 477, 135 Pac. 233.
(2) That respondent swore falsely about his child.
(3) Instructions to the jury: It is claimed the court erroneously instructed the jury “that by an ordinance of the city, automobiles are required to keep as near the right-hand curb, in the direction in which they are going, as it is practicable for them to drive, ’ ’ because it was not plead in the complaint. But the record shows that the appellants introduced this section of the traffic ordinance in evidence, and clearly the situation at the scene of the accident made the instruction proper. The criticisms made of the court’s instructions as to the effect of the respondent’s ability to see the automobile, although it was without lights, and the effect or legal consequences of the violation-of positive laws as related to the subject of negligence and proximate cause, are made as if those instructions stood alone in the whole body of the law given to the jury. They were only portions of the instructions on the subjects of negligence and proximate cause. The rule requires a consideration- of all of the instructions given, and from that view point, in this case, it appears there was no partiality in the instructions nor cause for the claim of errors.
Affirmed;
Parker, O. J., Fullerton, Bridges, and Tolman, JJ., concur.