57 Wash. 334 | Wash. | 1910
Lead Opinion
This is a suit to recover damages for personal injuries sustained by the plaintiff on September 26, 1908. There was a verdict and judgment in his favor for the sum of $5,500. The defendant has appealed.
The complaint in substance states that, at the time of the injury, the appellant was engaged in the operation of a street car line upon Whitman and other streets, in the city of Walla Walla; that its right to construct its tracks and to operate its road was granted by an ordinance of the city which provides that on unpaved streets it shall lay planks
The appellant moved to strike the following from the complaint :
“That defendant had negligently failed to place adjacent to said rails any plank or paving or other hard or firm substance on either side of either of the two parallel rails, constituting part of said system, at said place, and had negligently placed soft yielding dirt adj acent to said rails, so that the wheels of plaintiff’s wagon sank into said dirt; that such planks placed as required by the ordinances hereinafter referred to would have rendered said rails and street safe for public travel and the want thereof, or of some other hard substance in lieu thereof rendered the same unsafe, all of which acts of negligence were unknown to plaintiff and that by reason thereof. . . . which ordinances contained a provision to the effect that on unpaved streets, the rails should weigh not less than fifty-six pounds to the yard in length, and that there should be a plank one foot in width to be laid flush with and against the rail, and on the inside of each rail there shall be a plank one foot in width laid parallel with and champered so as to fit the rail; that Whitman street is an unpaved street; that the defendant failed and neglected to place any of said planks in position or to lay the same at all
The motion being overruled, appellant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer being overruled, it answered, denying any negligence on its part, and alleging affirmatively, (1) that the respondent was guilty of contributory negligence, and (2) that the ordinance referred to in the complaint provides that the planking may be waived by agreement between the city and the appellant, and that at the time the line was constructed the duty to plank was so waived. The reply put the new matter in issue, except it admitted that the ordinance contained a provision that the planking may be waived by an agreement between the city and the appellant. It is admitted that the appellant was operating a street car line in the city under an ordinance containing the provisions alleged in the complaint. It is also admitted that the track was planked on Whitman street at its intersection with Palouse street.
It is first urged that the court committed error in refusing to strike the portions of the complaint to which the motion was directed, and in overruling the demurrer. We will consider these assignments together. The argument is made that the ordinance is in the nature of a police regulation for the benefit of the city and not for the benefit of the people who travel the streets, and that the appellant is not liable to an individual for an injury resulting from its noncompliance with the conditions of the ordinance. In support of this contention it cites Fielders v. North Jersey Street R. Co., 68 N. J. L. 343, 53 Atl. 404, 54 Atl. 822, 96 Am. St. 552, 59 L. R. A. 455; Leary v. Boston El. R. Co., 180 Mass. 203, 62 N. E. 1, and Nellis on Street Surface Railroads, 57. In the Fielders case, which was a suit for damages for personal injuries, the defect which caused the injury was a hole in the street pavement between the rails of the track. Upon the
“There is nothing in the case to show that the pavement in question had been laid or maintained by the defendant, or that the defect resulted from any act of commission on the defendant’s part. Nor is there anything to connect the defect with the defendant’s rails or sleepers, or to show that anything done or omitted in the construction, maintenance, or operation of the railway produced the defect. The location of the hole between the rails is a mere circumstance, without causative significance. And the only default attributable to the defendant is the failure to repair. It is familiar law that a railway company, having the right to lay tracks in a public street, is bound, by the general principles of the common law, and without either a specific statute or ordinance or a contractual obligation, to lay its tracks in a proper manner, and to keep them in a proper state of repair. . . . But the present case is devoid of evidence to show that any liability for the repair or maintenance of the street pavement was imposed upon the defendant as a condition of its right to exercise its franchise, or that the defendant, by any contract, has undertaken such a duty.”
In the Leary case it is conceded that, where the statute granting a charter to the street railway company provides that the company shall maintain and keep in repair the portion of the street occupied by its tracks, the company is liable to the traveler who sustains an injury through its failure to comply with such provision. Nellis, on Street Surface Railroads, at page 54, states that the rule is that the authority granting the franchise may determine and dictate in what manner and under what conditions the franchise may be enjoyed.
In the Reynolds case it was held that a shipper could recover damages to live stock caused by a failure upon the part of the carrier to unload them after confinement for a period of twenty-eight consecutive hours, in violation of § 4386, U. S. Rev. Stats. In the Gray case the street car company was held liable for an injury resulting from its failure to maintain its rails flush with the street, as required by an ordinance of the city. In the McMahon case it was held that, the railroad company having contracted with the municipality to keep the streets safe for travel, and having failed to do so, one who was injured through its default had a right of action against it.
Moreover, independent of the obligation arising from the ordinance, the appellant could not so obstruct the street as to render it dangerous to travel and be exempt from liability to a person injured thereby; and the allegations in the complaint that the rails extended about six inches above the ties upon which they were placed, that they were unprotected except by soft and yielding dirt which the appellant had placed about them, and which gave the track the appearance of being safe when it was in fact dangerous, and
The fact that the track was planked at street intersections does not exempt the appellant from liability. The right of a traveler to cross a street is not limited to such points. In the Wolfe case the law of the street is aptly and tersely stated in the following language:
“The law of the public street is like the law of the sea, — it is the right to move on, the right to pass to and fro, without let or hindrance, other than such temporary stoppages in transit as are incident .to the business of travel.”
It is next urged that the court erred in refusing to grant a new trial, (1) because of newly discovered evidence; (2) because the damages are excessive; and (3) because of the insufficiency of the evidence to support the verdict. We will consider these points in the order stated.
The newly discovered evidence relied upon is that a witness was at the place where the accident occurred before the respondent had been removed; that he examined the surroundings with the view of determining the cause of the accident; that he observed two parallel wagon tracks crossing the street car track at an angle, passing off the track on Whitman street a few feet east of its intersection with Palouse street; that he did not see any wagon track south of the south rail. Palouse street runs north and south, and,Whitman street runs east and west. The car track, as we have stated, is on the latter street. The respondent testified, that he was driving a water wagon north on Palouse street; that he turned east on Whitman street where it intersects with Palouse street to get south of the street car track; that in making the turn the two left wheels passed over the south rail of
The record, however, shows a lack of diligence on the part of the appellant. Its manager testified that, on the afternoon of the day of the accident, as soon as he heard of it, he went to the place where it occurred and made an examination of the surroundings. The wagon and tank had not then been removed. There is no suggestion in his testimony that he examined the track to ascertain whether the wagon had come in contact with the rails. Due diligence required the appellant to begin its inquiry when it had notice that the accident may have resulted from its negligence. If the respondent’s wagon did not come in contact with the rails, and there was no soft dirt about them, the physical evidence was not present to establish that fact. The appellant did not make the investigation which ordinary prudence demanded.
The judgment was entered March 29, a motion for a new trial filed March 80, and denied on April 9. Thereafter, and
We do not think the damages are excessive. The respondent, at the time he received the injury, was sixty-four years of age, in good health, and earning with his team four dollars per day. An examination of the evidence discloses that he was confined to his bed about three months; that he had a compound, comminuted fracture of the left ankle and the lower part of the right leg; that the bones were crushed into fragments and protruded through the flesh in three places; that the process of healing was not complete at the time of the trial, six months after the injury; that the injury is permanent; that he will be able to get around by the use of a stiff shoe with the aid of a crutch, and as the doctor expressed it, “that is about all that he can ever expect to do.” With such an injury, if he is to be allowed anything for pain and suffering, the damages awarded are not excessive. The remarks of the trial judge upon the amount of damages will be considered later.
“Q. You are not sure whether your left front wheel then passed over the south rail or not? A. Well, I am pretty sure it passed over it, but then I turned so short here when I came back I think I went off right here. Q. And when the left front wheel passed over the rail, then it was still on the planked portion of the street? A. Yes, sir.”
We cannot determine from this testimony whether the witness had reference to the passing of the wheel to the north or its return to the south of the rail.
Argument is also made that there was a defect in the left rear wheel, and that if it had come in contact with the rail, it and not the right wheel would have broken. The record, however, shows that there was a slope toward the curbing, and that the tank was only partially filled with water. From this testimony the jury could conclude that the water shifted to the lower side of the tank, causing the right wheel to break. We cannot say from the record that there are physical facts present which should control the verdict. As we have stated, the court directed the jury that there could be no recovery if the respondent did not drive his wagon on the track where the planking should have been. Whilst, if it was an original question, the writer, as he un
In passing on the motion for a new trial the trial judge said that the evidence impressed him with the belief that the wagon did not pass over the unplanked part of the track, but that the wheel broke from the weight of the load, the defective axle, and the inclination of the surface of the street toward the parking, and that he was inclined to regard the amount of damages awarded by the jury as “more than they ought to be.” He further said: “Still the evidence was conflicting, . . . and the jury have reached a different conclusion. . . . Ten men are much less likely to be mistaken in a matter of this kind than one man. ... I do not feel warranted in granting a new trial on either of these grounds.” It is contended that the view entertained by the trial judge on these questions made it imperative upon him to grant a new trial. It requires no argument to show that the trial, judge is not required to grant a new trial in every case where his opinion upon the facts differs from the opinion of the jury as expressed in the verdict. Suell v. Jones, 49 Wash. 582, 96 Pac. 4; Columbia and Cowlitz River Boom and Rafting Co. v. Hutchinson, 56 Wash. 323, 105 Pac. 636.
Finding no error in the record, the judgment will be affirmed.
Rudkin, C. J., and Fullerton, J., concur.
Dissenting Opinion
(dissenting) — I dissent. It is to my mind conclusively shown by the physical facts surrounding the accident that it could not have occurred in the manner contended for by respondent. If, as testified by respondent — and his is the only testimony in the record upon the point — his left front wheel passed over the rail while it was still on the planked portion of the street, it would be physically impossible for the
It is to my mind clearly shown by the evidence and the attendant facts that the wheel broke in passing over the crossing where there ivas a drop of some inches. There is no other theory that can account for the position of the wagon upon the ground after the break. The reading of the record seems to have convinced the writer of the majority opinion that the wagon did not come in contact with the rail. The judge who tried the case gives it as his belief, after hearing the evidence and being familiar with the situation locally,’ that the wagon did not pass over the unplanked part of the track. Juries are sometimes moved, by facts that should not control them, to go outside the evidence and render verdicts which are contradicted by all the physical and uncontrovertible facts in the case. Whenever such fact is apparent to either the trial or appellate court, it should unhesitatingly speak and order a new trial where a verdict may be rendered upon the evidence, and thus justice be done all parties.
The judgment should be reversed and a new trial ordered.
Chadwick, J., concurs with Morris, J.