
    [No. 5925.
    Decided March 22, 1906.]
    Josephine A. Woodman et al., Appellants, v. Seattle Electric Company, Respondent.
      
    
    Cakbiebs — Negligence — Passengebs — Boabding Stbeet Cae in Motion — Nonsuit. In an action for death resulting from personal injuries received by a passenger in attempting to board a street car, there is no evidence of negligence on the part of the defendant, and a nonsuit is properly directed, where it appears' that the car had stopped to take on passengers waiting at the far crossing, and that the deceased approached from the rear and attempted to board the rear platform as the car was starting, there being no evidence that the conductor saw, or by the exercise of reasonable care, should have seen, that he was intending to board the car.
    Appeal from a judgment of the superior court for King county, Morris, J., entered June 21, 1905, upon granting a nonsuit, in an action for death resulting from injuries sustained by a passenger in attempting to board a street car.
    Affirmed.
    
      Baxter & Wilson, for appellants.
    
      Hughes, McMicTcen, Dovell & Ramsey, for respondent.
    
      
       Reported in 85 Pac. 23.
    
   Mount, C. J.

— This is an action for damages on account of personal injuries, which are alleged to have resulted in the death of W. H. Woodman. The action was brought by the widow and minor children of the deceased. The complaint alleged negligence as follows:

“That on or about the 2d day of September, 1904, the said W. IT. Woodman presented himself as a passenger on one of defendant’s cars upon C street, in the city of Ballard; that near the intersection of said C street and Main street, the said W. H. Woodman signalled to the conductor and driver in charge of said car to stop the same for the purpose of allowing the said Woodman to enter thereon; that said car was thereupon stopped and the said Woodman thereupon attempted to board the same, but that, through the negligence and carelessness of the driver or conductor of said ear or of both of them, said car was started while he was part way upon said ear and before he had obtained a secure footing thereon.”

At the close of plaintiffs’ evidence, the trial court dismissed the action, for the reason that the evidence failed to show any negligence on the part of the defendant company, and for the • further reason that the injuries received by the deceased were caused by his own careless and negligent acts. .

There was but one witness who testified to the accident. The facts are not disputed, and are substantially as follows: The defendant company operated an electric street car line between Ballard and Seattla On November 2, 1904, a ear bound for Seattle was going east on C street, in the city of Ballard. When the oar came to Main street, which crosses C street at right angles* two ladies were waiting there to board the car. The car stopped for these ladies at the east side of Main street. The ladies immediately boarded the rear platform of the car. When the car stopped Mr. Woodman was somewhere between the rear of the car and the southwest corner of the intersection of Main and C streets, walking very fast to catch the car. He reached the car about the time it started, and took hold of it and attempted to board it. As he did so his foot slipped from the bottom step, and he landed on the board pavement, still holding to the car with his hands. He again attempted to get his feet on the step; but failed, and holding on to> the car, was dragged about fifty or sixty feet when the car was stopped. When he attempted to get on the car the second time, the conductor caught him by the arm and attempted to assist him, but without success. When the car stopped, he got up from the ground, brushed himself, and hoarded the car and rode to his destination. He died on January 5, 1905. The evidence in the record does not show the character of the injuries.

Ho negligence of the respondent company is shown in this case. The only possible claim of negligence which could be made is the one which is attempted to be made, viz., that the conductor of the car saw, or should have seen, that Mr. Woodman intended to hoard the car before the car was started. There is no evidence that the conductor actually saw him until after he had attempted to hoard the ear and slipped off. The car was then in motion. Hor is there any evidence that the conductor in the exercise of reasonable care, should have seen that Mr. Woodman was intending to hoard the car before it started, or before the signal to start was given by the conductor to the motorman. Mr. Woodman was not with the ladies when the car stopped for them, nor was he at the entrance of the car when it was stopped, but was to the rear thereof, and it does not appear that he was in sight of the conductor. He did not reach the car until it was in motion or about to starts and evidently after the signal to. start had been given by the conductor. Hnless it was shown that the conductor should have seen the deceased, or that the latter was intending to hoard the car before the signal to go ahead was given, or before the car started, the conductor was not negligent and, of course, the respondent was not negligent. Foster v. Seattle Electric Co., 35 Wash. 177, 76 Pac. 995. The evidence does not show that the conductor was not at his station, nor does it show any facts from which the jury might reasonably conclude that the company was negligent.

The judgment is therefore affirmed.

Hoot, Pullebton, Hadley, Crow, and Dunbar, JT., concur.  