61 Wash. 171 | Wash. | 1910
The defendant prosecutes this appeal from a judgment rendered on the verdict of a jury in an action for personal injuries. The injury occurred to the plaintiff on April 6, 1908, between the hours of five and six o’clock in the evening. He was driving a team of horses hitched to an express wagon across the tracks of the appellant company, in Seattle, where Dearborn street crosses Rainier avenue, when one of the defendant’s cars ran upon him, killed his team, and severely injured the plaintiff. The complaint alleged that the car was running at an excessive rate of speed. The defense was a general denial, and also that the plaintiff was guilty of contributory negligence. The action was tried to the court and a jury, and verdict was returned for the plaintiff in the sum of $3,500. After motion for new trial was denied, judgment was entered upon the verdict, and defendant has appealed.
On the evening of April 6, 1908, about 5:30 p. m., when it was daylight, the respondent was driving south on the west side of the railway tracks on Rainier avenue between Jackson and Dearborn streets. When he came to Dearborn street he attempted to cross east over the railway tracks, when he was run down by the car. He testified that, before he came to the crossing, he looked back three different times to see if the car was coming, and saw nothing; that he looked back the last time when he was within twenty-five feet of the crossing, and saw no car; that when he drove upon the street car tracks, one wheel of his wagon dropped into a hole between the tracks, and while his horses were pulling on the wagon, the car struck him. Some witnesses testified on his behalf that, when respondent drove upon the track, the car was a block away; others, that it was one hundred feet away, coming down grade from Jackson street to Dearborn street and running at sixty miles an hour. It is agreed that the city ordinance prohibited a greater rate of speed than twelve miles per hour for street cars within the business and settled residence district of the city.
The question in the case is whether the court should have
“At highway crossings, a street car has no paramount right as against any other vehicle approaching on the cross street. The right attaching to each is equal, and must be exercised with due regard to that attaching to the other, and so as not to interfere with or abridge it unreasonably. It is not necessarily the duty of the driver of an approaching team to wait until the street car has passed, nor is it necessarily his right to push on and cut off its advance. Each party must act reasonably under all the attending circumstances. The driver of an ordinary vehicle can, under ordinary circumstances, be justified in proceeding, at a highway crossing, to go over a street railway in the face of an approaching car, when, and only when, he has reasonable ground for believing that he can pass in safety if both he and those in charge of the car act with reasonable regard to the rights of each other. The duty to slow up or stop, if necessary to prevent a collision, rests equally on each party. In practical effect these doctrines give any railroad car approaching a highway crossing, what amounts to a right of precedence. This follows from the rule respecting contributory negligence. No man has the right to calculate close chances as to his ability to reach the track before the car, and throw the risk of injury on the other party. As to whether the chances were close, however, and the railroad company were not the one really in fault, or whether tlie party injured did not push forward under circumstances of emergency which left him no time for calculation, will ordinarily be a question for the jury.”
In this case, assuming that the respondent should have seen the car before he drove upon the track because the car was evidently in plain view at that time, it was one hundred feet or possibly a block away. Under these circumstances,
The question of negligence of the respondent was therefore properly referred to the jury, and the judgment must be affirmed.
Rudkin, C. J., Parker, Fullerton, and Gose, JJ., concur.