Andersen v. Seattle Auto. Co. Inc.

• Decision Date: 14 March 1928
• Docket Number: 20959.
• Parties: ANDERSEN v. SEATTLE AUTOMOBILE CO. Inc.
• Court: Washington Supreme Court

265 P. 162

147 Wash. 76

ANDERSEN v. SEATTLE AUTOMOBILE CO. Inc.

No. 20959.

Supreme Court of Washington

March 14, 1928

Department 2.

Appeal from Superior Court, King County; Beals, Judge.

Action by C. K. Andersen against the Seattle Automobile Company Inc. From the judgment notwithstanding the verdict, plaintiff appeals. Affirmed.

Fullerton and Main, JJ., dissenting.

Dan Earle, of Seattle, for appellant.

Reynolds Ballinger & Hutson, of Seattle, for respondent.

HOLCOMB J.

This case, arising out of the bailment of an automobile by appellant to respondent, upon a trial to the court and a jury, resulted in a verdict for appellant in the full amount claimed, $500. Respondent had moved for dismissal at the close of appellant's case and for a directed verdict at the close of the whole case, both of which motions were denied. After the verdict, respondent moved for a judgment notwithstanding the verdict, or a new trial, and the court granted the motion for a judgment n. o. v set the verdict aside, and dismissed the case. From that action of the court, the appellant brings this appeal assigning five errors as grounds for reversal.

The record shows that, after some preliminary negotiations, a salesman of respondent, one Holden, made a proposal for the sale of a car to appellant, with the exchange of an Oakland touring car owned by appellant. Appellant's car had been overhauled and repaired about two months before. Holden proposed that appellant let him take the latter's car to respondent's place of business in Seattle to have it appraised for a trade-in value, with a view to turning it in on the new car. Appellant consented. Holden took the car, had it appraised at respondent's place of business, and while returning it went down two steep blocks on Denny way, the second one between Melrose and Eastlake avenues in Seattle, within which block he lost control of the car. The car dashed down hill, struck a Studebaker sedan at the intersection of Denny way and Eastlake avenue, and wrecked both cars. The undisputed evidence showed that the grade on the second block of the hill was 17.4 per cent., and that there was an alternative course of less grade and safer. There was also some evidence tending to indicate that Holden admitted to appellant and his wife that, after losing control of the car, he jumped out of it, leaving it without a driver. But the positive evidence of Holden also shows that after he lost control of the car on the grade, as he approached Eastlake avenue, he saw a street car and the Studebaker sedan coming parallel, about equal distances from the corner. They were on Eastlake and about as far from the intersection as he was. He was blowing the horn. He could not see what was coming from the other direction, so he swung over to the right, to give as much clearance to the street car and the sedan as possible, and as the street car and the sedan reached the intersection they were slightly ahead of him, and there was nothing left for him to do but to try to go behind the sedan and in front of the street car. He could not do it. He was not going fast. The pavement was dry, and the car did not skid. He did not slow down. There was nothing that he could do to prevent the collision. He was in intermediate when he started down. He did not know what gave way.

It is evident from this undisputed testimony that, if Holden jumped from the car at all, it was after he had reached the intersection of Eastlake and Denny way, saw the inevitableness of the collision with the sedan, and jumped from the car in order to avoid injury.

Holden's undisputed evidence also is to the effect that he went down the first hill all right, the brakes worked, and everything was holding all right. He started down the second hill, and was only half way down when he suddenly realized there was nothing holding him but his motor. He had the engine in intermediate gear. There was evidence that immediately after the wreck witnesses discovered that there was an old break in the hanger at one end or corner of where the engine was suspended to the frame. This old break is also plainly visible in the photograph introduced as an exhibit. But if the old break had become complete when the brake gave way or ceased to hold, or whether it was caused by the impact of the collision, is unknown. But the undisputed evidence also showed, by disinterested witnesses, that immediately after the accident witnesses proceeded to move the car from the street, and found that it moved readily, although there were only four men moving it. When it was got in to the curb, a witness went to put on the emergency brake and to his surprise found the emergency brake was on and that the car was in second gear. Another disinterested witness testified without dispute, that at that time he examined the car and found the foot brake not holding at all and the emergency brake holding on one wheel.

The first four assignments of error have to do with testimony excluded or stricken by the court: First, to the effect that the route chosen by the salesman of respondent, in returning the car to appellant, was not the direct and regular route between the two termini; and, second, that the court erred in excluding and striking testimony to the effect that the route chosen was dangerous and that the grade on Denny way between Melrose and Eastlake avenues, where the accident occurred, was a dangerous grade.

Appellant offered the testimony of himself and of another witness, attempting to show that the route taken by the car was not the regular route between the termini. Appellant was, however, permitted by the court to introduce a map prepared by himself, upon which the termini were indicated, but his testimony as to what was the regular route, and his tracing upon the map of what he indicated was the regular route, were rejected as conclusions. The other witness, who was attempted to be qualified as an expert driver in Seattle, and whose testimony was stricken, attempted to testify that there was an alternative route along Denny way of lesser grade and a 'V turn' or 'triangle street,' as he termed it, over a safer route, and that he would not go down the Denny way hill into Eastlake avenue at any time except in an emergency.

Appellant first relies upon the general rule relative to the admission of opinion evidence, stated in 22 C.J. 656, as follows:

'A person who is specially qualified by skill or experience is competent to express an inference as to matters connected with the management and operation of vehicles, machinery, and other appliances. * * *'

In Johnson v. Caughren, 55 Wash. 125, 104 P. 170, 19 Ann. Cas. 1148, this court reviewed and weighed the authorities on this proposition, holding generally:

'The general rule is that a witness must testify to facts, not opinions; that whenever the question to be determined is to be inferred from particular facts which can be readily produced before the jury, and the inference to be drawn therefrom is within the common experience of men in general, requiring no special knowledge, skill, or training, the inference or conclusion is to be drawn by the jury and not the witness.' We quoted from Thompson, Commentaries on the Law of Negligence, § 7747, and from 17 Cyc. 56, the gist of which applicable quotations are contained in Cyc., supra, as follows:

'The issue of negligence can in most cases well be determined by the judgment of the jury and the inference, conclusion, or judgment of witnesses is rejected. This rule has been applied, for example, to the question whether a bridge, road, roadway, sidewalk, track, or other place, machinery, mechanical appliance, rate of speed, situation, or other thing or collection or combination of things is safe or dangerous.'

We cited numerous authorities in the above-cited case to sustain the principle there enunciated.

In Simonson v. Huff, 124 Wash. 549, 215 P. 49, we again considered the admissibility of such opinion evidence. In that case we also said:

'Special skill will not entitle a witness to give an expert opinion where the jury is capable of forming its own conclusions from the facts shown. In other words, whether the acts of the driver of the stage on the occasion were careful and prudent or were negligent was within the common knowledge of mankind, and thus not a subject for expert opinion.'

Moreover one of appellant's...