Delaski v. Northwestern Imp. Co.

• Decision Date: 07 September 1912
• Court: Washington Supreme Court
• Parties: DELASKI et al. v. NORTHWESTERN IMPROVEMENT CO. et al.

126 P. 421

70 Wash. 143

DELASKI et al. v. NORTHWESTERN IMPROVEMENT CO. et al.

Supreme Court of Washington

September 7, 1912

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Mary Delaski and others against the Northwestern Improvement Company and another. From a judgment for plaintiffs, defendants appeal. Conditionally affirmed.

C. H Winders, for appellants.

William R. Bell, of Seattle, for respondents.

CROW, J.

This action, which was commenced by the widow and minor children of John Delaski, deceased, to recover damages for his wrongful death, has heretofore been in this court on plaintiffs' appeal. A judgment of nonsuit and dismissal was then reversed, and the cause was remanded for a new trial. A complete statement of the issues may be found in our former opinion, reported in 61 Wash. 255, 112 P. 341. After remittitur, the cause was again tried. The jury returned a verdict for $18,000 against the defendants, Northwestern Improvement Company and William Farrington, who now prosecute this appeal.

Appellants' first contention is that the trial court erred in denying their motion for a nonsuit and their challenge to the sufficiency of the evidence. The record is practically the same as that presented on the former appeal. Appellants contend that the evidence of John Delaski, Jr., son of the deceased, contradicts that which he gave on the former trial. To some extent this is probably true, but a considerable period of time elapsed between the two trials. The points on which the variance appears do not weaken his evidence as to controlling issues. Not only did appellants cross-examine him on all these points of variance, but they also introduced his former evidence. Any contradictions thus shown might to some extent affect his credibility, but it was for the jury to determine whether they would credit him. They have seen fit to do so. His evidence and that of other witnesses was sufficient to sustain a verdict in respondents' favor. We have carefully read the entire record, and conclude that appellants place too much stress upon the contradictions to which they refer. As to material issues, we fail to note any very considerable inconsistency. It is common experience that witnesses cannot, at different times, give an identical narration of incidents which they have observed and seen. Appellants have emphasized selected portions of the evidence to show the contradictions of which they now complain. Yet the credibility of the witness was for the jury, and it would certainly be a novel doctrine for an appellate court to hold that it would reject the evidence of a witness because of contradictory statements made at different times, and, with such evidence eliminated, order a nonsuit or a directed verdict. Such a course would be an unwarranted invasion of the exclusive province of the jury. It is possible that the jury were satisfied that the latter statements of the witness were true, and that he was mistaken or at fault in his recollection on the former trial. The evidence on this trial produced by respondents was as convincing as that presented on the former appeal, when we held it was error to grant a nonsuit. Appellants' motion for a nonsuit and challenge to the sufficiency of the evidence were properly denied.

Appellants contend the trial court erred in the admission of evidence. They insist that neither the general system of ventilation adopted in the mine nor the condition of the air, except on the tenth level, was in issue. Certain witnesses were permitted to testify that other men had been taken out of the mine, and that the air was bad on the ninth level on the east side of the mine, and also on the west side on levels other than the tenth, where the deceased was working. Appellants while conceding that much of this evidence was stricken insist that it was all incompetent and prejudicial, that the east and west...