Moorman v. Byron

Pemberton, J. This is an action for tbe recovery of damages for injuries received by respondent Emma Moorman. On tbe sixth day of January, 1922, respondents were walking north on tbe east side of Colby avenue, in tbe [523] city of Everett. There is a street car track near the center of Colby avenue. Upon reaching Everett avenue, respondents turned to the left, and at the street crossing proceeded as far as the street car track. At this point they hesitated, looking both to the right and to the left, and seeing that the way was clear, respondent Emma Moorman stepped forward to cross to the curb on the west side of Colby avenue. At or about this time, a stage driven by appellant was on the north side of Everett avenue, proceeding westerly at the street intersection. Appellant, seeing a car coming from the west, stopped his stage, and noticing that the right of way had been given him, proceeded forward and to the left, making the turn to go south on Colby avenue, and the stage ran against respondent Emma Moorman, causing the injuries complained of. To the complaint of respondent, appellant alleged, as an affirmative defense, that the respondents were guilty of contributory negligence. The case was submitted to a jury. At the conclusion of the testimony of respondent, the appellant moved for a dismissal of the action on the ground that the testimony was not legally sufficient to establish negligence on the part of appellant, and upon the further ..ground that respondents were guilty of contributory negligence as a matter of law. The motion was denied. At the conclusion of all the testimony, the motion was renewed and denied. A verdict was returned in favor of respondents in the amount of $685. Appellant moved for judgment notwithstanding the verdict. This motion was denied and judgment was entered in favor of respondents, from which this appeal is taken. At the time respondent was injured, she was on the westerly side of Colby avenue on the cross-walk south of the street intersection, and before passing from the [524] street car track westerly, would naturally not see appellant’s car going westerly on the north side of Everett avenue. There is some testimony to the effect that appellant stated after the accident that he did not see respondents. After reviewing the testimony in this case we are satisfied that the respondents were not guilty of contributory negligence as a matter of law, and this being true, both the negligence of the appellant and the contributory negligence, if any, of respondents were facts for the jury. Tooker v. Perkins, 86 Wash. 567, 150 Pac. 1138; Adair v. McNeil, 95 Wash. 160, 163 Pac. 393. The judgment is affirmed. Main, C. J., Mitchell, Fullerton, and Bridges, JJ., concur.