Duggins v. International Motor Transit Co.

• Decision Date: 27 August 1929
• Docket Number: 21680.
• Citation: 153 Wash. 549,280 P. 50
• Parties: DUGGINS v. INTERNATIONAL MOTOR TRANSIT CO. et al.
• Court: Washington Supreme Court

280 P. 50

153 Wash. 549

DUGGINS v. INTERNATIONAL MOTOR TRANSIT CO. et al.

No. 21680.

Supreme Court of Washington

August 27, 1929

Department 2.

Appeal from Superior Court, Lewis County; W. A. Reynolds, Judge.

Action by William L. Duggins against the International Motor Transit Company and another. From a judgment for the plaintiff defendants appeal. Affirmed.

Poe Falknor, Falknor & Emory, of Seattle, for appellants.

C. D Cunningham, Dysart & Ellsbury, and Lloyd B. Dysart, all of Centralia, for respondent.

MILLARD J.

In this action, which was instituted by a passenger to recover from a stage company and its statutory surety for personal injuries sustained in the overturning of a stage, the verdict was in favor of the plaintiff. From the judgment entered, motions for judgment notwithstanding the verdict and for a new trial having been overruled, the defendants appealed.

On February 2, 1928, a stage of the International Motor Transit Company, on which respondent was a passenger, was proceeding in a southerly direction on the Pacific Highway. The tracks of the Milwaukee Railroad Company cross that highway from east to west two or three miles north of Tenino, in Thurston county. The paved portion of the highway is 20 feet wide. The shoulder, or dirt and gravel portion of the highway, on the west side of the paving at a point 300 feet north of the railroad crossing, is 4 feet wide. The shoulder gradually increases in width until it is 6 feet wide at the place of the accident[153 Wash. 551] and 6 feet wide at the crossing. At the west edge of the shoulder, which is almost level with the pavement, is a ditch 6 or 7 feet in depth. When about 200 feet north of the railroad crossing, the two right wheels of the stage were driven off the paved portion of the highway onto the shoulder, and the stage proceeded to slow down to stop at the crossing, as required by the statute: 'Drivers of all motor vehicles carrying passengers for hire on any of the public highways of this state outside the incorporated limits of any city or town, shall bring said vehicles to a full stop within fifty feet of any unguarded grade crossing of any railroad or interurban track before crossing the same. * * *' Section 6350, Rem. Comp. Stat.

The stage had traveled about 100 feet with the two right wheels off the pavement when a south-bound Dodge sedan, operated by a lady, drove alongside the stage. The evidence as to what occurred is in sharp conflict. The testimony in behalf of the appellants is that 2 or 3 miles north of the railroad crossing the stage, on its second or third effort, overtook and passed the Dodge sedan, which angered the lady driver. The sedan drove alongside the stage 100 feet north of the crossing, the former coming into contact with the side of the stage, whereupon the stage swerved a little to the right towards the bank or shoulder to avoid a collision. The sedan pulled slightly to the left. The stage was then driven to the left back onto the pavement. Immediately following this move the lady drove her sedan directly in front of the stage, striking the front left wheel of the stage. The collision turned the stage towards the bank, caused the driver to lose control of the stage, which was driven into the ditch resulting in injuries to the respondent. The sedan continued on its course for a distance of approximately 40 feet, colliding with a semaphore 4 or 5 feet west of the highway and 9 feet north of the railroad crossing. The lady driver, when rebuked for what she had done, said: 'My intention was to run you down and bawl you out.'

However, the verdict reflects acceptance by the triers of fact of the theory of respondent, which is supported by substantial evidence, to the effect that the sedan drove alongside the stage about 100 feet north of the crossing. The lady driver of the sedan and the stage driver immediately engaged in conversation. The stage driver continued to converse with and look at the lady, paying no attention to the operation of the stage, which ran over the embankment into the ditch approximately 40 feet south of the point where the sedan overtook the stage. Two hundred feet north of the railroad crossing, which is 100 feet north of the point where the sedan ran alongside the stage, the right wheels of the stage were driven on the dirt portion or shoulder of the highway. The wheel prints indicated that the stage gradually proceeded farther and farther from the pavement until 50 or 60 feet north of the crossing, where it went over the bank into the ditch, having traveled 150 feet with the two right wheels on the shoulder of the highway.

Appellants first complain that the court erred in sustaining an objection to the following question asked on cross-examination of one of the respondent's physician witnesses: 'Do you know what 'railway spine' is, Doctor?' Under the general rule requiring a party offering evidence, when objection to its admission is made, to state its connection with other facts in order that its relevancy may be shown to the court, appellants' counsel stated: 'The purpose of my question is to show that complaints of this kind are often known as 'railway spine' and the patient after litigation is over summarily recovers. * * * That is as far as I intend to go.'

In support of the pertinency and propriety of such line of questioning, it is argued that respondent's contention, and the contentions of his physicians, that he was nervous and had pains in his back and spine, identify his ailment or injury as nervous affection recognized and designated by medical authority as 'railway spine.' In appellants' brief is the following quotation from Ashhurst on Surgery, Its Principles and Practice, p. 594: 'This term has been used to define a condition supposed to be more or less analogous to concussion of the brain (p. 569). It implies that there has been injury to the spinal cord without lesion of the vertebral column; and while some hold that the symptoms which follow a supposed injury have no pathological basis for their existence, being merely one form of neurosis, other authorities believe that actual changes in the cord have taken place, and have left more or less irreparable damage. Many of these patients receive their injury in railroad accidents, and the condition which ensues is popularly known as 'Railway Spine,' or, because of the improvement which usually follows the settlement of a suit for damages, as 'Litigation Spine."

Counsel for appellants argue that the appellants should have been permitted to elicit from their physicians that such nervous affections as respondent claimed to have are known as 'railway spine,' an illness or condition from which the patient promptly recovers upon the conclusion of the litigation. It is insisted there is no intention of charging, nor do they endeavor to raise, the inference that 'the patient is faking, but that as a matter of fact when the mind gets off of the litigation and off of the trouble, the pain disappears, and it was to develop that idea that counsel for appellants asked the question.'

Had appellants endeavored to prove that respondent was feigning the injury complained of or that the injury was imaginary, a different question would be presented. There is no assignment that the trial court erred in not permitting appellants to ascertain by direct examination or by cross-examination whether respondent was feigning or imagining an injury. No question is presented as to whether a medical expert may testify on direct or cross-examination whether an injury complained of is feigned or imaginary. Appellants did not in the court below, and do not here, argue that respondent is shamming--they expressly disclaim making any such charge--nor did they in the trial court, and they do not in this court, claim that respondent's injuries are imaginary.

'The inquiry on cross-examination should be allowed as wide a range as may be reasonably necessary to test the skill and reliability of the witness. The extent to which the examination may go in respect to such collateral matters rests in the sound discretion of the court, and the exercise of such discretion will not be reviewed on appeal, unless abused. * * *' Section 1342, Jones Com. on Evidence.

We said in Levine v. Barry, 114 Wash. 623, 195 P. 1003, 1006 that: 'The expert witness, because of his superior knowledge of the subject about which he is testifying, may be a very useful or a very misleading, or even dangerous, witness, and as to him the rules of cross-examination should be liberalized rather than restricted,' having in mind the general rule that on the cross-examination of an expert witness '* * * the cross-examiner may rightfully propound hypothetical questions based entirely on conjectural facts for the purpose of testing the skill and knowledge of the witness.'

The cross-examiner in the case at bar had no such objective. The door to any legitimate subject of inquiry must not be closed and cross-examination is proper to test the knowledge and credibility of the witness, but it cannot be extended so as to get before the jury incompetent and prejudicial facts not referred to in the direct examination. We are in harmony with the rule that permits a wide latitude in the cross-examination of witnesses who have testified as experts, but, as said in Wigmore on Evidence, § 878: 'Cross-examination is no universal solvent for reducing everything to admissibility.' It does not appear that the exclusion of the question (the witness answered that he knew what the term 'railway spine' meant) resulted in any injustice to the appellants. Appellants do not complain of refusal of the trial court to permit them at any stage of the trial to offer evidence that the injuries of the respondent were feigned...