City of Seattle v. Erickson

• Decision Date: 17 January 1918
• Docket Number: 14308.
• Court: Washington Supreme Court
• Parties: CITY OF SEATTLE v. ERICKSON.

169 P. 985

99 Wash. 543

CITY OF SEATTLE v. ERICKSON.

No. 14308.

Supreme Court of Washington

January 17, 1918

Department 1. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by the City of Seattle against C.J. Erickson. Judgment for defendant, and plaintiff appeals. Affirmed.

Hugh M Caldwell and Frank S. Griffith, both of Seattle, for appellant.

Corwin S. Shank and H. C. Belt, both of Seattle, for respondent.

FULLERTON J.

In the year 1906 the respondent, as a public contractor with the city of Seattle, was engaged in the work of regarding and improving Third avenue and certain cross streets in that city. The contract included University street between Second and Third avenues, and contained the following provisions:

'Fourth. The contractor will be required to observe all city ordinances in relation to obstructing streets, keeping open passageways, and protecting the same where exposed maintaining signals, and generally to obey all laws and ordinances controlling or limiting those engaged on the works, and the said contractor expressly stipulates and agrees to erect and maintain good and sufficient guards barricades, and signals at all unsafe places at or near where the said work and improvement contemplated herein is to be done or made, and to indemnify and save harmless the city of Seattle from all suits and actions, or every name and description, brought against the said city for or on account of any injuries or damages received or sustained by any party or parties, by reason of the failure of said contractor to erect or maintain such guards, barricades or signals, or by or in consequence of any negligence of said contractor or his or their agents or employés, in carrying on said work, or by or on account of any act or omission of said contractor in the performance of said work.'

One Mary Jones suffered a personal injury by reason of the condition of the sidewalk upon this section of University street. She brought an action for damages, joining the city and the contractor as defendants. A judgment of dismissal was entered as to the contractor, the respondent herein, and damages in the sum of $1,500 awarded against the city. This judgment was paid by the city, and, under a claim that the accident was due to the negligence of the respondent, the city instituted an action over to recover the sum for which it had been compelled to respond together with interest. At the close of appellant's evidence, the respondent's motion for nonsuit was granted, and a judgment of dismissal entered. The errors assigned are based upon the exclusion of evidence, and the granting of a nonsuit because of the insufficiency of the evidence introduced.

When the city engineer of appellant was upon the witness stand he was asked:

'Whose duty is it to keep the ways open for people to travel in getting in and out of their places of business and houses on streets that are undergoing grading operations?'

The answer to this question was excluded as calling for a legal conclusion. The ruling was proper. The contract under which respondent was working for appellant was in evidence, and showed the character of his duties and responsibilities.

The same witness was asked as to whether the contractor for the city was working upon University street between Second and Third avenues in July, 1908, the time of the injury for which the city had been mulcted in damages. The witness was unable to testify upon that point except by referring to books made by inspectors on the work acting under his charge and whose notes thus made were records of the city engineer's office. The witness was not permitted to refresh his memory from such records, and the exclusion of this evidence is claimed as error on the part of the court. It appeared that the witness had no knowledge of the fact except as it might be gleaned from the record entry. Conceding that a witness might refresh his recollection for the purpose of testifying in court by a reference to book entries made by another as part of the official records of the witness' office, there should at least accompany the offer of such proof a showing that the witness knew the entries to be correct. There was no such showing made in this case, and the authorities held that knowledge of the correctness of entries is essential where it is sought to refresh the memory by reference to them. Brotton v. Langert, 1 Wash. 227, 23 P. 803; Jones, Evidence (2d Ed.) § 877.

But such book entries are to be used only for the purpose of stimulating recollection of matters within the previous knowledge of the witness, not for the purpose of giving him information which he may detail to the court as competent evidence, while it is in fact nothing more than hearsay. The rule as to this character of evidence is well...