5 P.2d 985 | Wash. | 1931
This action was brought by the plaintiff, a child three or four years old, by her guardian ad litem, to recover damages for personal injuries. The cause was tried to the court and a jury, and resulted in a verdict against the defendant in the sum of five hundred dollars. A motion for judgment notwithstanding the verdict was made and sustained, and from *419 the judgment dismissing the action the plaintiff appeals.
The facts are these: The accident out of which the litigation arose happened at the intersection of Corson avenue and East Marginal way, in the city of Seattle. Corson avenue extends north and south, and East Marginal way approximately northwest and southeast. On either side of Corson avenue there is a strip of pavement fifteen feet wide, and between the two strips of pavement there are eight feet of gravel. On either side of East Marginal way there is pavement of the width of about twenty feet, and between the two strips of pavement there are double street car tracks, and that portion of the street is not paved.
The respondent, North Coast Transportation Company, is a corporation, and is engaged in the business of operating automobile busses for hire. The appellant, with her mother, was a passenger on one of the respondent's busses which was proceeding in a northwesterly direction on East Marginal way and turned to the right into Corson avenue. As it did so, the left wheels of the bus passed over the gravel strip, and an overnight suit case, which had been placed in a hat or parcel rack near the top of the bus, fell and struck the plaintiff on the forehead and nose, and it is for these injuries that recovery is sought.
The bus was approximately 30 1/2 feet long and 7 1/2 feet wide, and had a seating capacity for twenty-one passengers. At the time of the accident, all of the seats were taken, and there was one passenger standing in the aisle.
As to the manner in which the bus made this turn, the witness called by the appellant testified in effect as follows: That it was going "quite fast;" that it lurched and threw the passenger standing in the aisle "over onto my mother [who was seated nearby]," and *420 the suit case was thrown from the rack. There was testimony that, as the bus made the turn and came back on the pavement on the east side of Corson avenue, there was a sudden "lurch and jerk", and the passengers swayed in their seats. One witness testified:
"Q. Did you feel the manner in which he was turning into that street? Did you notice it? A. It was impossible for me to stay in the seat; I was not thrown out of the seat. Q. What did it do to you? A. Oh, just sort of — I sort of left the seat."
There was other evidence that the "bus driver was going faster than he should be."
[1] The first question is whether the evidence as to the speed, lurch or jerk, and the swaying of the passengers was sufficient to take the case to the jury. The general rule is that, when the injury and the circumstances attending it are so unusual and of such a nature that it could not well have happened without the operator of the vehicle being negligent, there arises a presumption of negligence. In Allen v. Northern Pac. R. Co.,
"The true rule would seem to be that when the injury and circumstances attending it are so unusual and of such a nature that it could not well have happened without the company being negligent, or when it is caused by something connected with the equipment or operation of the road, over which the company has entire control, without contributory negligence on the part of the passenger, a presumption of negligence on the part of the company usually arises from proof of such facts, in the absence of anything to the contrary, and the burden is then cast upon the company to show that its negligence did not cause the injury."
In order to establish liability, there must be evidence of what appeared to take place as physical facts from *421
which it can be inferred that the operator of the vehicle was negligent, or evidence capable of conveying to the ordinary mind a definite conception of some conduct on the part of those in charge of the car, outside of that of ordinary experience, on which a finding of negligence could rest. Work v. BostonElevated Railway,
For the ordinary jolts and jerks incident to transportation in rounding curves, there is no liability; and to say that a vehicle is going very fast or faster than it should go, is not evidence of excessive speed. In Seidenberg v. Eastern Massachusetts St.Ry. Co.,
"It is too well settled for discussion or for repetition of the reasons that mere jerks and jolts in starting an electric car, however vituperatively described, do not constitute negligence. Work v. Boston Elevated Railway,
"The circumstance that a passenger walking or standing within the car may fall, unaccompanied by some further physical facts showing violence in the operation of the car, is insufficient to establish negligence. McGann v. Boston Elevated Railway,
The cases of Diamond v. Weyerhaeuser,
This case falls clearly within the rule of those cases which hold that there is no liability resulting from something which is an incident of the means of travel. We see no reason why the same rule of liability should not be applied to an automobile bus which is engaged in the carrying of passengers for hire, as is applied to other means of conveyance.
[2] The next question is whether there was a prima facie showing of negligence by reason of the fact that the left wheels of the bus passed over the gravelled portion of the street between the two strips of pavement on Corson avenue. Rem. 1927 Sup., § 6362-41, *423 subd. 8, provides that it shall be unlawful to operate or drive any vehicle or combination of vehicles
". . . over or along any pavement or gravel or crushed rock surface on a public highway with one wheel or all of the wheels off of the pavement or gravel or crushed rock surface except for the purpose of stopping off the pavement or gravel or crushed rock surface."
The undisputed evidence in this case is to the effect that, in making the turn from East Marginal way into Corson avenue, with a bus the size of the one above described, it is necessary that the left wheels thereof pass onto the gravel strip before they reach the pavement on the south side of Corson avenue. If, as the evidence shows, this was a necessary incident in making the turn, and the wheels were only on the gravel to the extent that it was necessary for that purpose, it cannot be held that this was a violation of the statute.
The case of Duggins v. International Motor Transit Co.,
There being no evidence in this case from which the jury had a right to find negligence, and there being no facts supported by evidence from which negligence could reasonably be inferred, the trial court correctly granted the motion for judgment notwithstanding the verdict.
The judgment will be affirmed.
TOLMAN, C.J., HOLCOMB, BEALS, and MILLARD, JJ., concur. *424