Helliesen v. Seattle Electric Co.

Gose, J.

(concurring) — There is a photograph in the record, the accuracy of which is not disputed, which shows that the car which struck the respondent could be plainly seen from the place where the accident occurred, for a distance of about five hundred feet. There must of necessity be reciprocal duties upon the pedestrian and the street railway company. The track itself is a danger signal, and the pedestrian cannot be absolved from using the care which ordinary pru*286dence demands. Under the circumstances admittedly present in this case, the act of the respondent in starting to cross the track was gross negligence. The verdict of a jury will not be permitted to control physical facts. In concurring I assume that there was competent evidence from which the jury might find that the motorman did not ring the bell after leaving Summit avenue, but it does not follow that the respondent could step in front of a well-lighted, moving car so near her that she could not withdraw her foot in time to avoid being struck by it, without being guilty of such negligence as to preclude a recovery. If she can recover in this case, a right of recovery could not be denied her if she had been a second later and had been injured in colliding with the body of the car.