Cole v. McGhie

• Decision Date: 13 January 1962
• Docket Number: No. 35525,35525
• Citation: 59 Wn.2d 436,367 P.2d 844
• Parties: Arlie O. COLE and Ida H. Cole, his wife, Appellants, v. W. H. McGHIE and Jane Doe McGhie, his wife, and Joseph Fleming and Jane Doe Fleming, his wife, Respondents.
• Court: Washington Supreme Court

Page 436

59 Wn.2d 436

367 P.2d 844

Arlie O. COLE and Ida H. Cole, his wife, Appellants, v. W. H. McGHIE and Jane Doe McGhie, his wife, and Joseph Fleming and Jane Doe Fleming, his wife, Respondents.

No. 35525.

Supreme Court of Washington, En Banc.

Jan. 13, 1962.

Culp, Dwyer & Guterson, William L. Dwyer, Seattle, for appellants.

Clarke, Clarke, Albertson & Bovingdon, Seattle, for respondents.

HILL, Judge.

A departmental opinion, amrming a judgment for the defendants in this case, was filed May 11, 1961. ¹ A petition for rehearing was subsequently granted, and the case was heard En Banc on November 28, 1961. The court is now of the opinion that a new trial should be granted, because of the experiment conduct by the jury under the direction of the trial court.

The facts are adequately stated in the departmental opinion, and we are in accord with the disposition of the various issues as set forth therein, except as hereinafter indicated.

We agree with the statement in the departmental opinion that it was not error to allow the jurors to view the scene of the accident in order to better understand the testimony in the case. We have repeatedly held, in a long line of cases from Klepsch v. Donald (1892), 4 Wash. 436, 30 P. 991, extending through Sauls v. Scheppler (1960), 157 Wash.Dec. 165, 356 P.2d 714, that a view for such a purpose is discretionary with the trial court.

We have also repeatedly held that the purpose of a view of the premises is not to acquire new evidence. Sauls v. Scheppler, supra; Riblet v. Ideal Cement Co. (1959), 54 Wash.2d 779, 345 P.2d 173; Portland-Seattle Auto Freight v. Jones (1942), 15 Wash.2d 603, 131 P.2d 736. We have approved cautionary instructions, advising the jury of the limited purpose for which the view was permitted. Sauls v. Scheppler, supra. In the early case of State v. Lee Doon (1893), 7 Wash. 308, 311, 34 P. 1103, 1104, we said:

'* * * The jury does not view the premises for the purpose of obtaining evidence. No evidence is allowed to be offered there to the jury, under any rules or any circumstances. They simply view the premises for the purpose of enabling them to make an intelligent application of the testimony presented at the trial. * * *'

That the trial judge had in mind more than a view, for the purpose of enabling the jury to understand the testimony, was clear from the outset, as he said:

'Now, ladies and gentlemen of the jury, we are going out there and view these premises, but it must be after dark because we must reconstruct the light conditions as nearly as possible, so the bus will be here at 4:15, I believe.'

The question arose as to whether the plaintiffs' car should be placed in the stall, where it was located on the night of the accident. The plaintiffs' counsel protested that the court was planning an experiment; the court said:

'Well, gentlemen, why shouldn't that car be there? This jury is going to evaluate one thing, and that is the shadow cast by this car in these lights. It is exactly what they are doing. I think we should have that car in that stall. If you don't want to use the car, I will direct that another car be put there. That is exactly what they are evaluating that is exactly what the question is, and it is not evidence, it is a view. It is a view for the purpose of assisting them by using their eyes and seeing what their eyes can see in evaluating what the shadow was. That is my view on the subject, gentlemen, and unless Mr. Bovingdon, you do not want--Counsel apparently doesn't want it--if you don't want it I will not direct it over objection of both of you. [Counsel for defendants here concurs in trial court's view that the placing of the car is not error.] * * * I think it is the most direct way to get to exactly the issue in this case. * * * And you [plaintiffs' counsel] may decide between now and the time you get there whether you want to have your client's car put in there or whether you want some other car put in there. I prefer to have that car because it makes it that much more precise.'

When the jury arrived at the parking lot area, where the plaintiff wife had been injured, they walked around and generally inspected it and were then sent back to the bus. We now quote counsel for the defendants: ²

'While the jurors were back in the bus waiting for darkness to descend, the automobile of Mr. and Mrs. Cole was brought around and placed in the first stall, being the same stall that the testimony has shown that they were parked in the night of the accident. Defense counsel's car was then parked in the next adjacent stall.

'The jurors were then, after darkness had fallen, brought back into the parking lot and were requested to view that portion of the timber on the ground and the general area where the plaintiff wife fell and were asked by the Court to walk between the two parked cars in a northerly direction toward the concrete block wall, across the timber, and into the walkway beyond; and each juror, of course, complied with that request. The artificial lighting which was in operation at the time included three electric lamps mounted on the top of the eastern edge of the store building and a street light across the street in a northerly direction from the parking lot.

'In addition there was a light mounted on the north edge of the building near the northeast corner of the building which cast light directly west and directly east. I think there was some doubt as to whether that was casting any light on the lot itself.

'All of the foregoing was done over the objection of plaintiff on the following grounds. * * *'

The trial court regarded this as only a view, as did at least four of the judges of Department Two who signed the departmental opinion; a majority of the court now regard it as clearly an experiment and as the reception of evidence independently acquired out of court.

We stated the general rule, as to experiments conducted during a jury view, in Steadman v. Shackelton (1958), 52 Wash.2d 22, 28, 322 P.2d 833, 836, where we said:

'The purpose of a view is to enable the jury to better understand the evidence presented at the trial and not to acquire new evidence. See, In re City of Seattle, 49 Wash.2d 247, 299 P.2d 843, and Booten v. Peterson, 47 Wash.2d 565, 288 P.2d 1084. As stated in 150 A.L.R. 958, p. 960, it is generally held that where a test, demonstration or experiment is conducted during an authorized view, which concerns matters forming a material part of a civil action or criminal prosecution, upon which evidence has been submitted by both parties to the proceeding and which test, demonstration or experiment in a sense amounts to the reception of evidence independently acquired out of court, tending to influence the verdict, where there is no question of waiver on the part of the complaining party, relief should be granted to the losing party in the form of a new trial or reversal of the judgment. A few of the cases applying this principle are State v. Baker, 28 Idaho 727, 156 P. 103; State v. Miller, 61 Wash. 125, 111 P. 1053, Ann.Cas. 1912B, 1053; Downs v. Fossey, 144 Kan. 456, 61 P.2d 875, and Baroody...