Buell v. Park Auto Transp. Co.

• Decision Date: 23 December 1924
• Docket Number: 18854.
• Citation: 132 Wash. 92,231 P. 161
• Court: Washington Supreme Court
• Parties: BUELL et ux. v. PARK AUTO TRANSP. CO.

231 P. 161

132 Wash. 92

BUELL et ux. v. PARK AUTO TRANSP. CO.

No. 18854.

Supreme Court of Washington

December 23, 1924

Department 2.

Appeal from Superior Court, Snohomish County; Bell, Judge.

Action by S.E. Buell and wife against the Park Auto Transportation Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Main C.J., dissenting.

James B. Howe, Hugh A. Tait, Murphy & Kumm, and Charles L. Harris all of Seattle, for appellant.

Williams & Davis, of Everett, for respondents.

HOLCOMB, J.

This action arose out of a collision between the car of respondents and a motor stage of appellant, about 2 miles south of the city of Everett, about 1 o'clock p. m. on June 17, 1923. The jury awarded damages in the sum of $10,750, apportioning them by special findings as follows $10,000 for injuries to the person of respondent Ella M Buell; $500 for the injuries to the person of S.E. Buell, and $250 for damages to their automobile. A judgment was entered on the verdict, from which this appeal comes.

The Pacific Highway at the point of collision runs in a general north and south direction, is paved 16 feet in width, and has a dirt shoulder on the west side approximately 3 feet in width, the highway being straight for a distance of about a quarter of a mile north and south at the place of the accident. Respondent S.E. Buell was driving his Chevrolet touring car, accompanied by his wife, the other respondent returning from Seattle to their home in Vancouver, B. C., and driving, according to respondents' testimony, at a speed of from 20 to 25 miles per hour. Just prior to the accident, respondents were driving on the right-hand side of the paved road, and there were several other automobiles in front of them going in the same direction. The automobile immediately in front of respondents' car pulled out of the line of traffic in order to pass a Buick car going in the same direction. Respondents claim that the Buick car then slowed down somewhat, and swung a little off the pavement of the road, and then respondent S.E. Buell thought he was about to run into the Buick, stepped on his brake, and then, thinking to avoid a collision with the Buick, turned to the left, but struck the spare tire and its attachment on the rear of the Buick car and broke it. This collision, he said, threw him somewhat to the left and towards the middle of the pavement; that just then, the stage coming from the north, which had shortly previous thereto passed a car traveling the same direction as the stage, towards Seattle, had run off the paved portion of the highway a little to the right of the driver of the stage; that in pulling back onto the paved portion of the road, as respondents testified, the stage ran up diagonally onto the pavement and upon or close to respondents' right side of the road; that respondents' car was stopped at the time, and the stage ran into it. Respondents claim that the stage was running at a speed of from 35 to 40 miles per hour; respondent S.E. Buell claiming that it was going not less than 40 miles per hour.

There is a conflict in the testimony as to the speed of the stage, and as to the manner of the stage's traveling after it had passed the other car shortly before the accident. The driver and disinterested witnesses, who were passengers in the stage, testified that the stage was going 20 or 25 miles per hour, not over 25; that it slowed up and turned to the right with its right wheels off the pavement when the car just ahead of respondents had passed ahead of the Buick, to avoid it, and that it was still traveling with the right wheels off the pavement to the right side; that when it stopped it stopped in that position, except that the collision with respondents' car had blown up the left front tire of the stage, causing the stage to swing a little in towards the pavement; that when the stage stopped, if it had been another foot to the right it would have been in the ditch. There was testimony of two other apparently disinterested witnesses to the evidence of respondents, corroborating them to some extent.

Mrs. Buell received rather serious injuries, among others an injury to her spine, which, it is claimed, will be permanent, and, as doctors testified, may shorten her life. Mr. Buell sustained injuries for which $500 is apparently ample compensation, and the sum allowed for the damages to the automobile is all that was claimed by respondents.

Appellant claims errors as follows: (1) The overruling and denying of its motion for judgment notwithstanding the verdict. (2) In overruling and denying its motion for a new trial. (3) In entering judgment against appellant. (4) In not permitting a witness named Strong to testify whether at the time of the accident the stage could have been driven further to its right. (5) In admitting the testimony of respondent S.E. Buell (the husband) as to complaints made to him by respondent Ella M. Buell, his wife, concerning her injuries. (6) In giving instruction numbered 2. (7) In giving instruction numbered 15. (8) In permitting a medical witness to testify that the injury received by respondent S.E. Buell would have a tendency to shorten his life, and also that the injuries received by respondent Ella M. Buell might shorten her life.

As to the first error, there is no need of discussion. Whatever may be our views as to the weight and credibility of the evidence, there was a conflict in all of the essential facts in the case, and there was testimony to go to the jury sustaining the theory of respondents as to the cause of the injuries and damages. The third claim of error is of the same character.

The fourth claim of error is as to a matter in which appellant was not prejudiced, for the reason that Strong, a passenger in the stage involved in the accident, testified that when he got out of the stage he saw the stage standing with the right wheels off the pavement about 2 feet, and if it had been over to the right another foot it would have been in the ditch, which at that place was stated to be about 2 feet deep. The driver of the stage also testified to the same effect.

The fifth claim seems to have been decided by this court in the cases of Bothell v. Seattle, 17 Wash. 263, 49 P. 491; Peterson v. Seattle Traction Co., 23 Wash. 615, 63 P. 539, 65 P. 543, 53 L. R. A. 586, and Shearer v. Town of Buckley, 31 Wash. 370, 72 P. 76. The last two cases cited are more nearly in point upon this question than is the other, it being decided in both of the cases that testimony of complaints made by the injured person to another not a doctor, a few days after the injury, relating to the nature and extent of the injuries, is admissible. Appellant relies on Estes v. Babcock, 119 Wash. 270, 205 P. 12, quoting as follows:

'It is further urged that the court erred in permitting a physician, called as an expert witness, to testify as to statements made to him by Mrs. Estes regarding her condition upon which he based his opinion. Such evidence is admissible for

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