108 Wash. 251 | Wash. | 1919
The purpose of this action was to recover damages for personal injuries and damages to an automobile, claimed to be due to negligence chargeable to the defendant. In the answer, it was affirmatively pleaded that the damages claimed were caused by the contributory negligence of the plaintiff. The cause, in due time, came on for trial before the court and a jury. At the conclusion of all the evidence, the defendant moved for a directed verdict. This motion was denied and the cause was submitted to the jury, and a verdict rendered in favor of the plaintiff in the sum of $804.33. After the verdict was rendered, the defendant' moved for a judgment notwithstanding the verdict, which motion was overruled and judgment was entered on the verdict. It is from this judgment that the appeal is prosecuted.
The facts which are either not in dispute or which the jury had a right to find from the evidence may be summarized as follows: The appellant operates an electric interurban railway running from the city of Walla Walla, this state, to Milton, in the state of Oregon. The respondent lived on a ranch a few miles out of the city of Walla Walla. The damages for which recovery is sought are the result of a collision which occurred at the intersection of what is referred to as Finch avenue road, which extends north and south, and Wallula avenue road, running east and west. For some distance to the north of this intersection and also to the south, the track of the interurban is along the east side of Finch avenue road. Approximately six feet from the west rail of the track, on the north side of the intersection and bordering thereon, is what is referred to as a small depot or shelter station. This is a building approximately twelve feet long, ten feet high, and eight feet wide, the long way of which extends north and south. The respondent lived six or
The respondent testified that, as he approached the intersection, he looked in both directions and listened for the approach of a car. As he entered the intersection he swung to the left, so as to get a view back of the service station to the north to see if a car was approaching. Seeing none, he pulled upon the macadam in the center of "Wallula avenue roadway, looking again to the south and to the north. He then saw a car approaching from the north and within about fifty feet of the center of Wallula avenue roadway. The speed of the automobile was approximately ten miles per hour at the time, and he made every effort to stop it before reaching the railway tracks.
The motorman upon the car testified that, as he passed the service station, he observed the respondent for the first time and his distance from the approaching car was approximately thirty or forty feet. The service station was an obstruction which prevented the respondent from seeing the approaching interurban car, and also prevented the motorman from seeing the approaching automobile.
In the complaint, a number of grounds of negligence were alleged, one of which was failure to blow the whistle as the automobile approached the crossing and station. For the purpose of this decision, it will be assumed that none of the other grounds of negligence were sustained.
No motion for a new trial was made, and the appellant relies for reversal upon two points: first, that
The second point is that the respondent was guilty of contributory negligence, as a matter of law, because he failed to stop before attempting to cross the railway tracks. He testified that he both looked and listened and that he neither saw nor heard the approaching car. Had he stopped, his view would still have been blanketed by the service station. He testified that he was driving a practically new automobile and that the engine made very little noise. Upon this
In each of those cases the driver of the vehicle, as he approached the crossing and when the obstructions no longer blanketed his view, could have seen the approaching train or car in ample time to have stopped had he looked. In this case the motorman did not see the approaching automobile until he was within approximately forty feet of where the collision occurred. The respondent testified that he saw the car approximately fifty feet distant from the place of the collision. From this evidence it is apparent that, as the respondent approached the crossing and when he reached the place where his view would not be obstructed by the service station, he was so close to the track as to be unable to stop in time to avoid the collision.
Before it could be held that the respondent was guilty of contributory negligence as a matter of law, it would be necessary to find that a reasonably prudent man, in the situation in which he was, would not have proceeded to cross the track. Even where the facts are not in dispute, if different minds may honestly draw different conclusions from them, the case is one for the jury. Steele v. Northern Pac. R. Co., 21 Wash. 287, 57 Pac. 820; Averbuch v. Great Northern R. Co., 55 Wash. 633, 104 Pac. 1103.
In this case we cannot hold, as a matter of law, that a reasonably prudent man, in the situation in which the respondent was, would have stopped before at
The judgment will he affirmed.
Holcomb, C. J., Tolman, Mitchell, and Mackintosh, JJ., concur.