Dodge v. Stencil

• Court: Washington Supreme Court
• Writing for the Court: WEAVER; HAMLEY
• Citation: Dodge v. Stencil, 296 P.2d 312, 48 Wn.2d 619 (Wash. 1956)
• Decision Date: 12 April 1956
• Docket Number: No. 33369
• Parties: Earnest DODGE, Individually and as Guardian ad litem for Lynne Dodge, a minor, Appellant, v. Chester C. STENCIL, Jr., and Chester C. Stencil, Sr., and Jane Doe Stencil, his wife, d/b/a Globe Realty Co., Respondents.

Page 619

48 Wn.2d 619

296 P.2d 312

Earnest DODGE, Individually and as Guardian ad litem for Lynne Dodge, a minor, Appellant, v. Chester C. STENCIL, Jr., and Chester C. Stencil, Sr., and Jane Doe Stencil, his wife, d/b/a Globe Realty Co., Respondents.

No. 33369.

Supreme Court of Washington, Department 2.

April 12, 1956.

Claire Wheeler Seltzer, Bassett, Geisness & Vance, Seattle, for appellant.

Martin, Shorts & Bever, Seattle, for respondents.

WEAVER, Justice.

The trial court sustained a challenge to the sufficiency of plaintiff's evidence upon the ground that there was not 'substantial evidence to let this case go to the jury.' The court dismissed the action with prejudice and denied a motion for a new trial. Plaintiff, individually, and as guardian ad lilem of his minor daughter, Lynne, appeals.

The material facts and all reasonable inferences therefrom, which we accept as true, Ross v. Northern Pac. R. Co., 1955, 46 Wash.2d 832, 833, 285 P.2d 870, are these:

Lynne Dodge, three and one half years old at the time of the accident, lived with her parents on the east side of 17th avenue northeast, south of its intersection with east 85th street, in the city of Seattle. The street is approximately thirty feet wide.

Two automobiles were parked within ten or twelve feet of the south line of the Dodge driveway. An automobile owned by the Dodges was parked north of the driveway. The Dodges' garage protrudes from the front of the house and extends back about one half the length of the house. The record does not disclose the distance from the garage to the street.

Just prior to the accident, Mrs. Dodge was sitting in her car (a second one) in the garage. She was just leaving home to visit her husband in the hospital.

Lynne approached her mother in the garage. She wanted pennies so she might to to a 'carnival' which the neighborhood children were holding on a vacant lot across the street and a bit south of the Dodge residence. Just before the accident, Mrs. Dodge saw Lynne on the driveway, a few feet from the car, walking toward 17th avenue northeast. Mrs. Dodge testified:

'I had just talked to her about two minutes before, two seconds before.'

Defendant's car, headed north, was parked on the east side of 17th avenue northeast, between fifty and seventy- five feet from the place of the accident. He left his place of business nearby about seven p.m. 'It was a nice sunshiny evening.' He drove north, traveling fifteen to twenty miles per hour and three to four feet out from the cars parked at the curb, south of the Dodge driveway. He did not see Lynne until after the accident. Called by plaintiff as an adverse witness, he testified:

'I heard a thud, a thump, and I realized I must have hit something, so I stopped. * * * It was quite noticeable. I stopped as soon as I heard it, so I knew I had hit something.'

Defendant reacted quickly and stopped his car in approximately twenty feet. He left his car immediately.

'Well, I saw, when I got out of the car, why, I saw there was a little young girl was coming down off, out of her house there; other than that, I didn't see anybody. I looked around and I didn't see anybody else. * * * I got out of the car and looked in back and there was a shoe in the street. I couldn't see anybody, so I looked under the car and here was a little girl under the left center axle, left front center axle there. * * * It was the left front center part of the axle there, you know, the front axle. It was on the left side closer to the center of the axle.'

A strap on Lynne's jumper had caught on the front axle of defendant's car.

There were no eyewitnesses to the collision 'except four year old children.' None of them were called to testify.

Plaintiff argues that three alleged admissions by defendant furnish substantial evidence sufficient to take the case to the jury.

Defendant's original answer to plaintiff's complaint admitted the allegations of the claimed acts of negligence. However, the prayer of the answer asked that the complaint be dismissed. More than a month prior to trial, defendant's counsel served and filed 'Notice of Trial Amendment.'

In accordance with this notice, the typewritten word 'admit' in the original answer is stricken. Above it is written 'deny,' followed by the initials 'W. R.,' presumably the initials of the trial judge. Nothing further concerning the amendment appears in the record. It is obvious that the use of the word 'admit' in the original answer was a mispleading.

Although a superseded pleading containing an admission against interest is competent evidence, Smith v. Saulsberry, 1930, 157 Wash. 270, 288 P. 927, it must be offered in evidence before it can be used as proof of the matter contained therein. Meyer v. State Board of Equalization, 1954, 42 Cal.2d 376, 267 P.2d 257, 263; 4 Wigmore on Evidence (3d ed.) 61, § 1067 (1940). In the instant case, the original answer was not offered in evidence.

In his opening statement to the jury, defendant's ...