Atkeson v. Puget Transportation Co. , 139 Wash. 552 ( 1926 )

Mitchell, J.

Clarice Atkeson, six years of age, by her guardian ad litem, sued the Puget Transportation Company, a common carrier of passengers in motor busses, and the Automobile Insurance Exchange as surety on the statutory bond of the transportation company, alleging that, on January 30, 1925, at the intersection of Ainsworth and Sixth avenues in Tacoma, the driver of one of the transportation company's busses carelessly and negligently ran into and upon her and seriously and permanently injured her. It was further alleged that the driver of the bus drove across the intersection at a greater rate of speed than twelve miles an hour, and greater than proper under the circumstances and without due regard for the safety of pedestrians crossing the intersection, in violation of an ordinance of the city and the statutes of the state, causing the injuries suffered by her. The answer was a general denial. A verdict was returned for the plaintiff and, from a judgment thereon, the defendants have appealed.

It is claimed that the evidence was insufficient to justify a verdict for the respondent. Ainsworth avenue, running north and south, is crossed by Sixth avenue, running east and west, about a. block north of a public school on the east side of Ainsworth. The Tacoma Railway & Power Company operates street cars on two tracks on Sixth avenue. The collision occurred a few minutes before nine o'clock in the morning. A street car going west stopped on the east side of Ainsworth and let off a number of school children. About the same time, an east bound street car stopped to take on passengers on the west side of Ainsworth. After the west bound car crossed Ainsworth, the east bound car started to cross that avenue. The appellant’s for-hire bus was following and overtaking the east bound street car, and there is some dispute or uncertainty in the evidence as to whether it stopped, or simply slowed down, as the east bound street car was receiving passengers on the west side of Ainsworth. As the street car moved across the avenue, the bus, from a position slightly behind the street car and taking a course four or five feet south of and parallel with the street car, sped up, or as one witness said, “shot by the street car” at a-specified speed in excess of that fixed by both the state law and an ordinance of the city. Just at that time, the girl, on her way to school, was going south on the east sidewalk of Ainsworth, walking fast or running, as the different witnesses testified, and on reaching Sixth avenue continued her course. The street car conductor, observing the child, stopped his car in the street, but the bus driver ran into the child just after she passed beyond the front of the street car. The bus driver claimed he did not see the child. However, the street ear conductor and one or two of his passengers, a person in an automobile immediately behind the bus, and at least one passenger in appellant’s bus, each testified to seeing the girl before and after she got on Sixth avenue and until she was knocked down by the bus. One witness testified that, shortly afterward, the driver of the bus said that, at the time of the collision, he was thinking of instructions to beat the street car to the next crossing and pick up passengers ahead of the street car. Some of this important evidence was disputed, which presented, of course, a case to be decided by tbe jury, and certainly not to be decided by tbe court as a.matter of law in favor of the appellants.

A question is raised witb respect to an irregular verdict proposed by tbe jury and tbe manner of having it corrected under tbe directions of tbe court. Tbe amount tbe jury decided tbe plaintiff was entitled to recover was in excess of tbe bonding company’s contract liability. Tbe situation was confusing to tbe jury and caused them at first to incorrectly express themselves as to tbe amount against each of tbe defendants. Tbe confusion and irregularity were apparent. Thereupon tbe court further advised them as to tbe form of verdict and witb tbe additional caution and instruction that, until it was put in proper form upon an agreement, they should still consider tbe case as being with them upon tbe merits, sent them out for further deliberation. They then brought in a verdict in proper form which was received. There was no error in tbe course pursued.

It is contended there was error in several of tbe instructions given to the jury. They need not be set out herein. Upon due consideration of them, we are satisfied tbe assignments are not well taken.

Error is assigned upon tbe refusal of tbe court to give a requested instruction upon tbe subject of tbe responsibility and rights of a driver confronted witb a sudden emergency and peril. But we find that tbe court did instruct tbe jury upon this subject in words of its own choosing, correctly and as favorably to tbe appellant as it could well do.

We are of tbe opinion that tbe verdict was not excessive. Affirmed.

Tolman, C. J., Parker, Mackintosh, and Main, JJ., concur.