119 Wash. 195 | Wash. | 1922
Lead Opinion
— Tbe plaintiff, Plastino, commenced this action in tbe superior court for King county, seeking recovery from tbe defendant city of damages wbicb be claims to bave suffered as tbe result of tbe negligent operation of one of tbe city’s street cars. A trial upon tbe merits resulted in a verdict awarding to Plastino recovery in tbe sum of $7,000. Tbe city, by appropriate motions timely made during and following tbe trial, challenged tbe sufficiency of tbe evidence to entitle Plastino to any recovery, and also moved in tbe alternative for a new trial. Tbe trial court denied tbe city’s motions challenging tbe sufficiency of tbe evidence to entitle Plastino to any recovery; and also denied tbe city’s motion for a new trial, upon condition that Plastino consent to a reduction of tbe award to $6,400. He having elected to take an award so reduced, rather than suffer a new trial, judgment was rendered accordingly; from wbicb tbe city has appealed to this court.
Tbe first and principal contention here made in behalf of tbe city is that the trial court erred in overruling its motions for an instructed verdict and for judgment notwithstanding tbe verdict; that is, that tbe trial court erred in its refusal to decide, as a matter of law, that Plastino was not entitled to any recovery. Tbe argument of counsel for tbe city upon this branch of tbe case is addressed almost wholly to tbe question of contributory negligence on tbe part of
At the hour of about two o’clock in the afternoon of the day of the accident, Plastino drove west along Sixty-first street, approaching Twenty-fourth avenue. When he arrived at about the east line of the pavement of Twenty-fourth avenue, he stopped to await the passing of a north-hound street car upon the east track, which car was about to cross Sixty-first street. He waited there for a moment until he considered that the street car had proceeded a sufficient distance across the intersection so that he could proceed, when he started on west along Sixty-first street, passing immediately behind and within a few feet of the north-bound street car. When he arrived upon the west track, his automobile was struck broadside by a rapidly moving south-hound street car upon the west track, causing his injury. The jury might well .have believed that the speed of the south-bound street car was thirty miles, or more, per hour, the lawful speed being not to exceed twenty miles per hour. The impact was so violent and the speed of the street car so great, that Plastino and his automobile were carried along upon the front end of the street car a distance estimated by different witnesses at from 125 to 160 feet.
Our decision in Stueding v. Seattle Elec. Co., 71 Wash. 476, 128 Pac. 1058, particularly relied upon by counsel for the city, does seem to furnish some argument in support of a contrary holding. That case involved the care to be exercised by a pedestrian crossing a street intersection over street car tracks. A pedestrian has at least some greater degree of opportunity to protect himself than one driving an automobile, by reason of the fact that he has a somewhat larger degree of control over his movements. We note that the pedestrian injured in that case was passing behind a standing street car in front of an on-coming car on another track; and being only a pedestrian he could have stopped, even after passing behind the first car; and no doubt would have then stopped had he made proper observation of the on-coming car on the other track. This, it would seem, furnishes some ground for distinguishing that case from this. However that may be, we think the later decisions of this court, above cited, are controlling here. We conclude that, in view of the speed of the south-bound car, the want of timely signal of its approach from the north, and what Plastino did under the circumstances, as the jury was warranted in viewing them, it should not be decided, as a matter of law, that the city was free from negligence, or that Plastino was guilty of contributory negligence.
“I instruct you as a matter of law that it is the duty of the driver of a vehicle to be constantly on the lookout to avoid being hit by street cars; that is, it is the duty of the driver to keep out of the way of the street car, and if you find from the evidence in this case that the plaintiff was not paying heed or was not giving the right of way, or that he was violating any of the provisions of the ordinance to which I called your attention, then he would be guilty of negligence. ’ ’
This was followed by the court’s 15th instruction, reading as follows:
“But the failure to look and listen at a street crossing before crossing the street does not constitute negligence as a matter of law.”
At first thought it seems a little difficult to harmonize these two instructions; but we think they are not so inconsistent as to have misled or confused the jury to the prejudice of the city. Indeed, it is a little difficult to see other than that the 14th instruction was somewhat more favorable to the city than it was entitled tff; since to give all of its language full force and effect would seem to leave no degree of care imposed upon the operator of a street car. The 15th instruction, we think, is the settled law in the light of our repeated holdings. We must remember that this was a collision between a street car and an automobile, and not between an ordinary railroad train and an automobile. More than that, it occurred within a street intersection,
“Contrary to the rule applicable to ordinary railroads, we have held that it is not negligence in itself to fail to stop, look and listen before crossing a street car track. This, of course, does not mean that a person so crossing may act blindly, without giving any heed to his own safety; it means simply that the rule is not one of uniform application to such a situation; that a person is not to be charged with negligence from the fact alone that he did not stop, look and listen. If the conditions are such that it would be the duty of an ordinarily prudent person to stop, look and listen before crossing the track, then the person crossing must do so, else be charged with negligence for not so doing. Stated in another way, the omission of the duty is but a fact to be weighed with all other facts and circumstances surrounding the case in determining the question of negligence or contributory negligence.”
We think the giving of these two instructions was not error prejudicial to the city’s rights in the trial of the case.
Some contention is made that the trial court erred in refusing to give certain instructions requested by counsel for the city to be given. We think it sufficient to say that the instructions so requested to be given were covered in substance by others given by the court, which were fully as favorable to the city’s contentions as the ones refused to be given, and that, therefore, no prejudicial error was committed in the refusal complained of.
The city pleaded as an affirmative defense, in substance, that Plastino, when he was injured, was then
It is contended in behalf of the city that Mr. Tucker, of counsel for Plastino, while making his argument before the jury, was guilty of misconduct in the use of certain language to the prejudice of the city. All that we have in the record touching this contention is the following:
“Mr. Tucker: . . . Counsel knows that any judgment that is rendered will not be paid out of the city treasury, but will be paid out of the Stone & Webster bonds. Mr. Griffith: If the court please, I think counsel is just a little out of propriety when he talks about that. That is improper conduct and improper argument. The Court: What was his remark? Mr. Griffith: His remarks were something about the bonds of Stone & Webster. It is rather stretching the argument a little. The Court: Well, I guess Stone & Webster are not interested in this matter now, Mr. Tucker. Mr. Tucker: Well, the only thing I wanted to say — I don’t think I was in error about it, but anyway whatever judgment we get is payable out of the public utilities. Counsel will not contend that if we get a judgment it is payable out of the general fund — ”
It must be conceded that some impropriety on the part of Mr. Tucker is suggested by this quoted portion of the record. We are convinced, however, that his conduct was not of such a prejudicial nature against the city as to call for a new trial of this case. In the
Two other contentions are made and very briefly argued: (1) That the wife of Plastino, present at the trial, was guilty of such misconduct as to prejudice the rights of the city in the trial; and (2) that the verdict was excessive, as being prompted by passion and prejudice on the part of the jury. We think it sufficient to say that we have carefully examined both of these contentions and are quite satisfied that there was no abuse of discretion on the part of the trial court in refusing to grant a new trial for either of such reasons.
The judgment is affirmed.
Fullerton, Main, Holcomb, and Mitchell, JJ., concur.
Dissenting Opinion
— The opinion of the majority says: “Just as Plastino was starting his machine to cross the pavement and street car tracks be
Bridges and Hovey, JJ., concur with Mackintosh, J.-