Birkel v. Chandler

• Decision Date: 09 October 1901
• Court: Washington Supreme Court
• Parties: BIRKEL v. CHANDLER.

66 P. 406

26 Wash. 241

BIRKEL v. CHANDLER.

Supreme Court of Washington

October 9, 1901

Appeal from superior court, King county; O. Jacobs, Judge.

Action by Albert M. Birkel against the Mutual Life Insurance Company and others. From a judgment in favor of plaintiff, defendant B. C. Chandler appeals. Affirmed.

Tucker & Hyland, for appellant.

Jas. M Epler, for respondent.

HADLEY J.

This action was brought by respondent to recover for loss of the services of his son, Clifford Birkel, a minor of the age of 14 years, because of personal injuries received by said minor. On the 14th day of November, 1898, the Mutual Life Insurance Company of New York was the owner of a building situated in the city of Seattle, known as the 'Mutual Life Building,' and had placed on and attached to said building a wooden beam, and to said beam a snail for the purpose of holding and fastening block and tackle to be used in carrying into said building safes and other heavy articles. Appellant, Chandler, is a professional safe mover and is the owner of trucks, horses, pulleys, tackle, and other necessary appliances ordinarily used in the moving of safes. On the said date the law firm of Humphries, Humphrey & Bostwick employed one Heath to remove their office furniture from what is known as the 'Sullivan Building,' in the city of Seattle, to an upper floor of the said Mutual Life building. The said Heath employed appellant, Chandler, to remove the safe belonging to said firm. The safe was hoisted into said building by means of said beam and snail and by ropes and pulleys thereto attached. Some heavy planks 16 feet long, 12 inches wide, and 4 inches thick had been hoisted, and used for the purpose of rolling said safe from the window where it was taken into the building. An effort was made to lower these planks to the street by means of the hoisting appliances above mentioned. A rope was tied around the planks and was also attached to a windlass situated upon a wagon below. The planks thus held were being lowered by unwinding the rope from the windlass below. Chandler was at the time standing upon the wagon, and if not actually assisting in turning the windlass, was at least giving general directions to those engaged in lowering the planks. A small guide rope was attached to the larger one which held the planks, said guide rope swinging down to the street below. Calligan, a friend of Chandler, but not employed by him to assist in the work, happened to be standing near, and, as the planks descended, Chandler asked Calligan to take the guide rope for the purpose of swinging the planks clear of the windows of the building and other obstructions in the way of their descent. Calligan accordingly took and held the guide rope, and was endeavoring to guide the planks so that their descent would not be obstructed. While all were thus engaged, the planks were lodged against some telegraph or telephone wires, and while they were endeavoring to free them from the wires they slipped through the noose in the rope by which they were held, and fell to the street below. The boy Clifford Birkel happened to be passing along the street at the time, and the planks fell in such a manner that they struck him, and he thereby received serious personal injuries. It is alleged that he was struck on his head, on his side, and on his leg, from which concussion of the brain resulted, two ribs were broken, and his feet badly bruised and injured; that to so great and alarming an extent was he injured that he was unconscious for the period of 18 hours, was confined to his bed for the space of 4 weeks, is still suffering from the effects of said injuries, and will continue to suffer for a long period of time; that said injuries are permanent, and will cause a lifetime injury,--whereby the father, respondent here, was deprived of the services of his said son. The action was brought against the Mutual Life Insurance Company, Chandler, and Calligan. The several defendants answered separately. The Mutual Life Insurance Company admitted its ownership of the building, and that it had caused the beam and snail heretofore mentioned to be attached to the building for hoisting purposes, but claimed that said appliances were secure, and answered the purpose for which they were intended, and that, if the boy Clifford Birkel had received injuries, they were wholly due to the carelessness of others, with whom said company was in no way connected, and for whose acts it was not responsible. Chandler answered that he was employed by Heath to transport the safe, and that any acts or things done at the time were done, ordered, and directed by said Heath; that he (Chandler) had no knowledge or information as to what directions Heath gave others, but that in moving the safe his own acts were done under the direct supervision and control of Heath. Calligan answered that he was not employed by Chandler, Heath, or any other person, and was in no way interested in the matter. The answers of Chandler and Calligan each charged the said Clifford Birkel with contributory negligence. A trial was had before a jury. At the close of the plaintiff's testimony each of the defendants moved the court for judgment of nonsuit. The motion was granted as to the Mutual Life Insurance Company, but denied as to Chandler and Calligan. After the testimony of defendants had been introduced, the cause was, under instructions from the court, submitted to the jury as against Chandler and Calligan, and thereafter a verdict was returned in favor of the respondent for $2,000. Thereupon both Chandler and Calligan moved the court to set aside the verdict and to grant a new trial. The motion to set aside the verdict as to Calligan was granted, and judgment against him was arrested, but the entire motion was denied as to Chandler. Thereafter the court dismissed the action as to Calligan, and entered judgment upon the verdict against Chandler for $2,000 and costs. From said judgment Chandler has appealed.

It is assigned as error that the court permitted Dr. Gibson to testify concerning injuries to the mind of Clifford Birkel. Counsel correctly state that the rule as to the measure of damages in this case is limited to the earning capacity of the minor, except that it includes in addition thereto the necessary expenses for nursing, medicines, and physicians' charges in the effort to cure the minor. We think it is manifest, however, that the mental condition of the minor as a consequence of his injuries is a proper supject for consideration in determining his future earning capacity. The testimony was properly admitted.

It is urged as error that the court admitted the testimony of Mrs. Birkel, the mother of Clifford Birkel, concerning his condition when she first saw him a short time after he was hurt; it being contended that the evidence should have been confined to the one question of the earning capacity of the boy, and that the testimony of the mother as to his condition had only the effect to appeal to the sympathy of the jury, and was not material testimony. We think the testimony was proper for the purpose of showing the jury the nature and extent of the injuries. It is true, the surgeon in charge also testified upon the same subject, and, while the extent of injuries is usually shown by the testimony of physicians and surgeons, yet we know of no rule that limits such testimony to that class of witnesses. The testimony of others who have actual knowledge of the injuries may be received, and weighed by the jury for what it is worth. It was necessary that the jury should be advised of the condition of the boy immediately following the accident, and also of the probable consequences, in order to estimate intelligently the effect upon his earning capacity.

It is urged as error that the court did not allow counsel to cross-examine Mrs. Birkel as to her competency to testify concerning the earnings of Clifford Birkel and the value of his services. The witness was asked if she knew the value of the services, and answered that she did. Counsel then sought to cross-examine her as to her sources of knowledge before she testified as to the value of the services. This the court refused, stating to counsel at the time that he could cross-examine the witness upon that subject when he entered upon his general cross-examination. We think the court was right. The witness, having stated that she knew the value of the services, was then competent to state what it was. Upon general cross- examination as to the sources of her knowledge the jury would then weigh the value of her testimony in connection with her knowledge as shown. It is true, the court, in its discretion, might have permitted the cross-examination before she testified as to the value following the rule that is usually adopted in the case of expert witnesses. But, in any event, it was not error to refuse it. It would have been error to treat this subject of the...