City of Spokane v. Costello

• Decision Date: 07 March 1906
• Citation: 84 P. 652,42 Wash. 182
• Parties: CITY OF SPOKANE v. COSTELLO et al.
• Court: Washington Supreme Court

84 P. 652

42 Wash. 182

CITY OF SPOKANE v. COSTELLO et al.

Supreme Court of Washington

March 7, 1906

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by the city of Spokane against Peter Costello and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Hamblen, Lund & Gilbert and John A. Pierce, for appellants.

Fred M Dudley and James M. Geraghty, for respondent.

FULLERTON J.

In September, 1901, one Philip Born recovered a judgment against the city of Spokane for personal injuries suffered, as he alleged, from a fall into an excavation made in a street of the city, which the city had negligently allowed to remain unguarded or otherwise unprotected. The city appealed from the judgment, but the same was affirmed by this court. Born v. Spokane, 27 Wash. 719, 68 P. 386. After the case was remanded with instructions to carry the judgment into execution, the city paid the judgment, and thereupon instituted this action to recover the amount so paid from the appellants. The complaint of the city contained all the necessary averments to fix liability on the appellants. In brief, it charged that the excavation into which Born fell was dug by the appellant Costello while in the performance of a contract he had with the city to improve the street on which the accident happened, and that he had, contrary to his contract with the city, negligently left the excavation unguarded and otherwise unprotected; further alleging that the appellant American Bonding & Trust Company was jointly liable with him, because it had executed its bond to the city by the terms of which it expressly contracted to save the city harmless from any liability it might incur by reason of the negligence of Costello. Issue was taken on the complaint and a trial entered upon, in the course of which the court discharged the jury called to try the case and entered a judgment for the city. This judgment was reversed by this court on two grounds: First, because it did not appear in the proofs that the excavation into which Born fell was one made by Costello, and which it was his duty under his contract to guard; and, second, that the notice served upon the appellants by the city, giving them notice of the pendency of the action by Born against it, was not served in time to constitute anything more than prima facie evidence of 'due notice' called for by the contract, and that the court erred in refusing to permit the respondent to show that it was not served in time to enable them to prepare their defense. 33 Wash. 98, 74 P. 58. The case was again tried after its remand on the last-mentioned appeal, and again resulted in a judgment for the city. This appeal is from the judgment last entered.

The provisions of the contract and bond on which the city relies for a recovery are set out in the opinion of the court on the former appeal, and it is unnecessary to set them out again here. We shall proceed, therefore, to examine the assignments of error in the order in which they are argued in the brief of the appellants. On the trial, after showing that Philip Born, the plaintiff in the original case against the city had died, the respondent offered in evidence certain parts of his testimony given on that trial, for the purpose, as stated by counsel, of showing the particular place where he met with the accident, how the accident happened, and the condition of the lights and barriers at the place of the accident. To this the appellants objected, on the ground that it was not competent for the purposes offered, as that trial was res inter alios and the testimony of witnesses given there could not be independent evidence against them on the trial. The trial court overruled the objection, and permitted the evidence to be read. This ruling constitutes the first error assigned. In Washington Gas Co. v. Dist. of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712 where the facts were similar to the case at bar, it was held that the testimony of witnesses given on the original trial was admissible along with the entire record to prove the scope of the thing adjudged in the action in which it was given, but that such evidence possessed no intrinsic proving power, and was not competent to establish a fact necessary to be shown outside of the record to bind a person liable over to the original judgment debtor, even though such person had been given notice of the institution of the action in which the judgment was obtained, and had been requested to take upon himself the defense of it. Under the rule as announced here it would seem that the evidence objected to was not competent for the purpose for which it was offered. As we said on the former appeal, the judgment roll in the Born Case failed to show that the excavation into which the injured plaintiff fell was made by Costello, or was one against which he was bound under his contract to guard. This being a fact necessary to be established by evidence having intrinsic proving power, it was error to admit this evidence for that purpose, and reversible error, unless it clearly appears that it was not prejudicial. Passing to the latter inquiry, we are unable to see how the appellants were prejudiced by the evidence. The ultimate fact that it was intended to establish was shown later in the course of the trial by evidence against which no objection was made, or could have been successfully made; and, more than this, no attempt was made by the appellants to controvert the fact that the injury to Born was caused by an excavation which Costello was bound by the terms of his contract to guard against. This being true, it became one of the established facts of the case, and it was not error requiring reversal that incompetent evidence was introduced on the question. Schwede v. Hemrich, 29 Wash. 124, 69 P. 643; Lownsdale v. Grays Harbor Boom Co., 36 Wash. 198, 78 P. 904; Elster v. Seattle, 18 Wash. 304, 51 P. 394; Bell v. Spokane, 30 Wash. 508, 71 P. 31.

It is next complained that the court refused to strike out the evidence of the witness Latimer. This motion was properly overruled, because too broad. The witness plainly testified to some matters that were within his knowledge and therefore competent, and it was not ground for striking out the whole of his evidence to show, on cross-examination, that a part of the matters testified to were derived from hearsay.

The third assignment is the refusal of the court to grant a nonsuit. This motion was based on the ground that the evidence was insufficient to sustain a verdict or judgment for the respondent. But, without setting out the evidence on which we base our conclusion, we have no hesitancy in saying that the verdict and judgment are sustained by competent evidence on all of the issues. The contract between Costello and the city contained, among others, the following provisions: 'It is further agreed, that, if in the judgment of the board of public works it shall be necessary to retain a portion of the consideration to be paid by the first party to the second party...