78 Wash. 396 | Wash. | 1914
Lead Opinion
Action by William Kiely against the Seattle Electric Company, a corporation, to recover damages for personal injuries. From a judgment in plaintiff’s favor, the defendant has appealed.
The controlling assignment of error, and the only one we need to consider, is appellant’s contention that the trial court erred in denying its motion for judgment notwithstanding the verdict. Appellant owns and operates a double line of street cars on 15th avenue west, and other streets in the city of Seattle. On September 22, 1911, respondent, together with one Shrewsbury, was employed by the city of Seattle in dragging city sewers, and on the date named was thus employed on 15th avenue west. At and near the point of the accident, there were two manholes, about three hundred feet apart, which descended from the street surface to the sewer below. Shrewsbury was in the southerly manhole dragging the sewer, while respondent was on the street above. While there, he was struck by one of appellant’s cars and was injured. His allegations of negligence were, (1) appellant’s failure to give sufficient warning of the car’s approach; (2) excessive speed; and (3) failure of appellant’s servants to observe certain flags stationed at the manholes.
The evidence shows that, shortly before he was struck, respondent was leaning over the southerly manhole talking to Shrewsbury, who was about to come to the surface for the purpose of obtaining a piece of timber needed in his work. The evidence further shows, that 15th avenue west extended in a northerly and southerly direction; that the car which struck respondent was traveling south; that, when approaching, it could be seen for a distance of almost half a mile before it reached the point where respondent was injured; that the street was clear from obstructions, further than the mere suggestion of another car that had just passed in an opposite direction; that Shrewsbury and respondent had removed the coverings from the manholes, and had placed a flag at each of them as a warning; that the manholes were about three
The principal questions in this case are, (1) whether respondent was guilty of contributory negligence; and (2) whether the doctrine of last clear chance can be applied. Respondent had been engaged in the same work for the city for a number of years, and had been working in this identical locality for about two weeks. The accident occurred in daylight. The street was straight, with a slight descending grade towards the south, and the south-bound car which struck respondent, when approaching, could have been seen for at least half a mile. There was nothing upon the street to distract respondent, to confuse him, or to divert his attention ; nor was there any evidence that he was deficient in any natural sense, such as sight or hearing. Although he was rightfully upon the street engaged in his usual work, it is difficult to understand how, in the exercise of ordinary care and prudence, he could have failed to see or hear the approaching car. As a witness in his own behalf, he seemed unable to give any intelligent account of how the accident happened. The evidence of other witnesses indicates that he was paying no attention to the approaching car. If he was conscious of its approach, he certainly exercised no care in stepping from the zone of danger; an act which would have required but an instant of time. Two, or at most three, ordinary steps would have placed him in a position of safety. Under these facts, we fail to see how the respondent is to be relieved from the charge of contributory negligence.
In support of his contention that, under the evidence, the issues of negligence and contributory negligence were for the jury, respondent cites Budman v. Seattle Elec. Co., 61 Wash. 281, 112 Pac. 356. This case involved an injury to an employee of the company which was operating the car. The employee was engaged in shoveling dirt from the defendant’s track. Under these facts, we held that the company was under an obligation to exercise a higher degree of care to
The only remaining question is whether the doctrine of last clear chance can be applied to the facts of this case. We think it cannot. The evidence of passengers on the car was to the effect that, for a distance of from 75 to 200 feet before the car reached respondent, the motorman was ringing the gong. Some of them testified that they saw respondent; that he was standing upon or near the track on which the car was running; that he raised himself as if to move; that his appearance indicated an intention to step from the track; and that there was nothing in his conduct to indicate a contrary intention until he was struck. One witness testified that the motorman, in addition to ringing the gong, had decreased the speed of the car; that when respondent raised himself as if to step from the track, the speed was slightly increased, but that the car was not running at an excessive rate of speed. The doctrine of last clear chance has been discussed in Herrick v. Washington Water Power Co., 75 Wash. 149, 134 Pac. 935, Mosso v. Stanton Co., 75 Wash. 220, 134 Pac. 941, and -other cases by this court, but we fail to see how it is pertinent here. Conceding the appellant to have been negligent in running the car at an excessive rate of speed, it is apparent from the proven and undisputed facts that respondent’s negligence was concurrent therewith, and continued to the time of the accident. In other words, his contributory negligence had not ceased, but was a proximate cause of the accident. In Duteau v. Seattle Elec. Co., supra, this court said:
“If a motorman may not assume that persons on the street will exercise due care for their own safety, until something in their actions or appearance warns him to the contrary, as*402 stated in the seventh instruction, it is needless to say that the operation of street cars on crowded thoroughfares would be well nigh impossible.”
The judgment is reversed, and the cause remanded with instructions to dismiss.
Concurrence Opinion
(concurring) — I concur in the result reached by the majority, but solely on the ground of contributory negligence which, it seems to me, was established regardless of the rule announced in Budman v. Seattle Elec. Co., 61 Wash. 281, 112 Pac. 356. I can see no good reason for limiting the rule stated in that case to employees of the railway company. The fact that employees of the city are at work upon the street in plain view of a street car motorman or the driver of a vehicle ought to impose a greater degree of care upon such motorman or driver than in case of a pedestrian not preoccupied with any task. Burger v. Taxicab Motor Co., 66 Wash. 676, 120 Pac. 519. Employees of the railway company have no higher right to work upon the street than employees of the city, and are entitled to no greater consideration from the railway company.
