Amsbary v. Grays Harbor Ry. & Light Co.

• Decision Date: 28 February 1914
• Citation: 78 Wash. 379,139 P. 46
• Court: Washington Supreme Court
• Parties: AMSBARY v. GRAYS HARBOR RY. & LIGHT CO.

139 P. 46

78 Wash. 379

AMSBARY v. GRAYS HARBOR RY. & LIGHT CO.

Supreme Court of Washington

February 28, 1914

Department 2. Appeal from Superior Court, Chehalis County; Ben Sheeks Judge.

Action by Ella Amsbary against the Grays Harbor Railway & Light Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Bridges & Bruener, of Aberdeen, for appellant.

A Emerson Cross, of Aberdeen, and Hugo Metzgler, of Tacoma, for respondent.

PARKER, J.

The plaintiff seeks recovery of damages which she claims resulted to her from the death of her husband, caused by the negligence of the defendant in the operation of one of its street cars. A trial before the court and a jury resulted in verdict and judgment against the defendant, from which it has appealed.

Appellant operates a street railway in and between Aberdeen and Cosmopolis. On October 10, 1912, at 7:25 in the evening respondent's husband, having fallen 'in a heaped-up condition,' as expressed by a witness, near the westerly rail of appellant's track leading from Aberdeen to Cosmopolis, was struckon his head by the lower step of one of appellant's cars, resulting in his death soon after. He was seen to fall in that position a few minutes before being struck by the car. The evidence indicates that he was very much under the influence of intoxicating liquor at the time. Whether his fall was caused by his intoxication or by one of his fits, which the evidence indicates he was in some degree subject to, is not clear, nor is it certain as to whether he was unconscious or unable, of his own volition, to extricate himself from his dangerous position before he was struck by the car. There is apparently no uncertainty as to the time being 7:25 in the evening, since this was readily ascertainable by the regular running time of the particular car. It also seems certain that darkness had come some time before the accident occurred, and that the only light of any consequence was from the headlight of the car, and comparatively small electric lights at street crossings some 300 feet apart. The accident occurred about midway between two of these street lights. The car was running south on a straight, level track, for a distance of 670 feet, before striking deceased. A plank road runs along the westerly side of the street, parallel with the car track with a space of 43 inches between them. This plank road is 24 inches higher than the track, the space between being nearly filled with sawdust, which slopes from near the surface of the plank road down to the ends of the ties of the track. The lower step of the car was 20 inches above the ties of the track, and extended about 25 inches out beyond the rails. From these facts it would seem that deceased's position by the side of the track can be determined with a considerable degree of accuracy. The speed of the car when the motorman first saw deceased was from 13 to 15 miles per hour, which is not claimed to be an excessive rate of speed at that place. The motorman claims that he was not able to see deceased until within 30 feet of him, and that the car was stopped as quickly as possible thereafter. The car ran past deceased after striking him, about two or three car lengths, before it could be brought to a stop. The motorman also claims that no portion of deceased's body was upon the track before being struck by the car. The ties of the track were not planked nor graded over so as to make the space occupied by the track suitable for ordinary travel. Indeed, the street was not improved at all for ordinary travel, except by the plank road, along which evidently all ordinary travel of the street proceeded. The neighborhood is an outlying district near the common corporate boundary of Aberdeen and Cosmopolis. The evidence tended to show that a person dressed as deceased was, and in his position at the side of the track, would not readily be seen by a motorman on an approaching car, even though such car were supplied with a strong headlight.

The principal claim of negligence made by counsel for respondent on the part of the motorman seems to be that he did not exercise due care in observing the track ahead of the car, and discover deceased at the side of the track in time to stop the car before striking him. We do not understand that there is any serious contention against the motorman's claim that he could not stop the car at the rate it was going within a distance of 30 feet, nor that the speed of the car was excessive at that place. For the purpose of corroborating the motorman, and showing that he could not see the deceased until within such a short distance that the car could not be stopped before striking him, and for the purpose of showing the greatest distance at which the deceased could be seen from the approaching car, having in view deceased's peculiar situation, the color of his clothes, and the nature of the sloping sawdust upon which he rested, counsel for appellant offered testimony of witnesses to an experiment had after the accident occurred, under substantially the same conditions as at the time of the accident. This offer of proof was rejected by the trial court, which ruling is claimed to be erroneous by counsel for appellant, entitling it to a new trial. A witness who had arrived at the place of the accident soon after it occurred, while deceased lay upon the plank road, very near where he had been struck by the car, was upon the witness stand when the offer of proof was made by appellant's counsel as follows:

'Q. Suppose that a man, during the night, where it was dark, a man was crouched down between the plank roadway there and the rail, nearest rail, and he was crouched so that the lower step of the car would hit him in the head, and he was dressed in dark clothes. * * * I will ask you if it would be difficult for a motorman to see a man under the circumstances I have named. A. It would be; it would be rather difficult. Q. Did you recently make a dummy man? A. I did. * * * Q. About how long ago was that? A. A little over two weeks ago. Q. I will ask you whether or not you placed that dummy between the plank roadway and the nearest rail of the car track at about the location that you saw this man at the time of his injury.

'Mr. Cross: Same objection.

'Court: I sustain the objection.

* * *

* * *

'Mr. Bridges: In order that we may dispose of this matter now, I would like to make an offer. * * * We offer to show by this witness that he, about two weeks ago, made a dummy in the form of a man, dressed as the deceased was dressed, and that after night, on an occasion substantially the same as the night of the injury, he took this dummy and placed it on the sawdust between the railroad track and the plank roadway in the position and location that the deceased was at the time of his injury, and that, after that was done, a car, the same car that was run at the time of the injury to the deceased, was started from Aberdeen, that witnesses occupied a position in the front portion of the car with the motorman, with certain information given them concerning the dummy, given them in advance, and that they were on the car in front with the motorman, the motorman being the same motorman that was driving the same car, which was in the same condition as it was at the time of the accident, and we offer to prove by this and other witnesses the result of that investigation, the result of what happened there; we offer to prove it by this and other witnesses, parties who were standing with the motorman looking through the motorman's window, as to what they could see and when, if at all, they did see this dummy object. We offer to show that the conditions were the same as at the time of the injury.

'Mr. Cross: Objected to as incompetent, irrelevant, and immaterial.

'Court: I will sustain the objection.

'Mr. Bridges: Exception.

'Mr. Bridges: Such would be your honor's ruling if those witnesses whom I have mentioned were called?

'Court: I presume so.

'Mr. Bridges: I don't want to keep them here if that is the situation.

'Court: Yes.

'Mr. Bridges: Exception.'

This experiment occurred two weeks before the trial, and eight months after the accident. The ruling of the trial court, and argument of counsel for respondent in support thereof, does not point to any theory upon which the correctness of the ruling is rested other than the seeming assumption on the part of the trial court and counsel that there was an insufficient similarity of conditions attending the accident and the experiment the result of which was proposed to be shown. Plainly the language of the offer was not deficient in that regard. It may be that, had counsel for appellant been permitted to proceed, there would have been a failure to show such substantial similarity of conditions as to render testimony concerning the result of the accident admissible. On the other hand, the similarity of conditions might have been proven sufficient to render testimony as to the result of the experiment admissible, and very helpful to the jury in determining the question of the motorman's negligence in so far as his observation of the track ahead of the car is concerned. It seems quite clear to us that counsel for appellant were entitled to lay the foundation for offering testimony touching the result of the experiment. Yet this is the very thing they were, by the ruling of the court prevented from doing, which ruling seems to have no other foundation than the court's assumption that there was, in fact, no sufficient similarity of circumstances attending the accident and the experiment. The real error of the court lies in the fact that counsel for appellant were not permitted to introduce evidence touching this preliminary question; while the...