Facts
- A pedestrian (Hovden) was struck and injured by a Seattle Electric Company streetcar while crossing a Seattle street near mid-block rather than at a regular crosswalk.
- Hovden testified she saw the streetcar approaching from about 475 feet away.
- A different streetcar traveling in the opposite direction on the track nearer to Hovden stopped in front of her; she walked around its rear and then came into contact with the moving streetcar that caused the injury.
- Hovden alleged the streetcar was operated at a dangerous and unlawful speed and without warning signals.
- Evidence permitted findings that the streetcar traveled about 20–25 miles per hour where the lawful speed was 12 miles per hour and that no bell or other warning was given.
- Evidence also tended to show Hovden, though an adult familiar with streetcars, lacked the intelligence and capacity for self-care possessed by an average adult.
Issues
- Whether there was sufficient evidence of the streetcar company’s negligence (excess speed and lack of warning) to submit the case to the jury.
- Whether Hovden’s contributory negligence was established as a matter of law, requiring a directed verdict or judgment notwithstanding the verdict for the streetcar company, given that she saw the streetcar and crossed mid-block.
Decision
- The Ninth Circuit affirmed the judgment for Hovden.
- The court held there was sufficient evidence for a jury to find negligence based on speed substantially above the lawful limit and failure to give warning.
- The court held contributory negligence was not conclusively established; given the surrounding circumstances and evidence of diminished mental capacity, reasonable jurors could differ, so the question properly remained with the jury.
- The trial court therefore did not err in denying a directed verdict or judgment notwithstanding the verdict.
Legal Principles
- Contributory negligence is ordinarily a jury issue; it becomes a question of law only when the duty is fixed by law or when the evidence permits only one reasonable inference.
- Evidence that a streetcar exceeded a lawful speed limit and failed to provide warning signals can support a jury finding of negligence.
- In assessing contributory negligence, the factfinder may consider evidence that an adult plaintiff lacked ordinary intelligence and capacity for self-protection.
- A pedestrian crossing an urban streetcar track is not necessarily held to the strict railroad-crossing “stop, look, and listen” approach and may, within reason, assume lawful operation (including compliance with speed limits and use of warnings).
Conclusion
The court upheld a jury verdict for an injured pedestrian because evidence of unlawful speed and absent warnings supported negligence, and contributory negligence could not be taken from the jury where the circumstances and the plaintiff’s reduced capacity allowed more than one reasonable view of her care.