110 Wash. 334 | Wash. | 1920
B. F. Reed appeals from á judgment of nonsuit in an action for damages for injuries to his person and automobile caused by a collision with a street car, at the intersection of Yakima and Division avenues, in the city of Tacoma. The collision happened about midnight, June 22, 1918. Plaintiff and five others in the automobile driven by his daughter were going northerly along Yakima avenue across Division avenue. The street car was east-bound. From the south, Yakima avenue intersects Division avenue at less than a right angle. Arriving near Division avenue, the driver of the automobile, on looking to the left, saw no street car. When within about eighteen
“You folks riding motorcycles and automobiles at the rate of 60 and 70 miles an hour and expecting us to do all the watching out and avoiding collisions should be 'taught a lesson, and it would be a good thing if there were more collisions like this, and I do not intend to do all the stopping myself, but you fellows will sort of have to look out for yourself.”
Thus it appears the driver of the automobile, upon seeing the danger, did make an effort to avoid it. She adopted a course which she and her companions said was the only one available in the emergency. At the same time, it is obvious that, if the motorman had made the slightest effort to prevent the collision, at almost any instant of time prior thereto, the accident would not have occurred. On the contrary, the testimony shows the motorman, while somewhat overtaking the automobile, the persistent course of which was converging with his own, continued to increase the speed of the street car until the impact actually took place.
The rights and obligations of parties situated as these were have often been considered by this as well as other courts. “These rights are mutual and reciprocal. Each must have a due regard for the rights and safety of the other.” Arpagaus v. Washington Water Power Co., 86 Wash. 83, 149 Pac. 346. In the last analysis, the rule is one of ordinary care on the part of each under the given circumstances. Respondent undertakes to preclude appellant by the so-called antecedent negligence of his daughter in approaching so near the street-car track that she could not stop the automobile before the collision. The contention, however, loses sight of the right of appellant’s daughter to assume that respondent’s motorman would attempt to control the street car, or at least that he would not continuously increase its already unlawful speed until the very moment of striking the automobile. That
The judgment is reversed, and the cause remanded for a new trial.
Holcomb, C. J., Mackintosh, Parker, and Main, JJ., concur.