Plastino v. City of Seattle

Citations

• 119 Wash. 195
• 205 P. 404
• 1922 Wash. LEXIS 776

Syllabus

<p>Stbeet Railways (20, 29) — Contributory Negligence — Drivers of Vehicles — Question for Jury. Whether the driver of an automobile, struck by a street ear at an intersection, was guilty of contributory negligence in not seeing the approaching street car, of which he had an unobstructed view while waiting for another street car to pass, is a question for the jury, where the street car, without any signal or warning, was approaching at such an excessive speed that there is room for an honest difference of opinion as to whether a reasonably prudent man would have concluded that there was no approaching car near enough to hit him before he crossed the tracks.</p> <p>Same (34) — Instructions—Contributory Negligence. An instruction as to the duty of an automobile driver in crossing street car tracks is not erroneous or misleading in stating that failure to look and listen is not necessarily contributory negligence.</p> <p>Election of Remedies (5) — Validity and Finality — Ineffectiveness op Remedy. The filing of a claim for compensation under the workmen’s compensation act cannot be said to be an election of remedies, precluding a telephone operator, struck by a city street car while crossing the track, from suing the city for his injuries, where there was no showing that he had received or was entitled to compensation, or that the telephone company was subject to the act.</p> <p>New Trial (11) — Grounds—Argument of Counsel. In an action against a city for personal injuries sustained in a collision with a city street car, it is not an abuse of discretion to refuse a new trial on the ground of improper argument to the effect that the city general fund would not be liable for any recovery by plaintiff, where the city did not ask for any instruction to the jury to disregard the remarks, and the court made it clear that parties suggested as liable were not interested in the case.</p> <p>Mackintosh, Bridges, and Hovey, JJ., dissent.</p>