Edwards v. Burke

• Decision Date: 14 November 1904
• Parties: EDWARDS v. BURKE et ux.
• Court: Washington Supreme Court

78 P. 610

36 Wash. 107

EDWARDS v. BURKE et ux.

Supreme Court of Washington

November 14, 1904

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Adele Edwards against Thomas Burke and wife. A judgment was rendered in favor of plaintiff, and defendants appeal. Affirmed.

Piles Donworth & Howe, for appellants.

E. F Blaine and Tucker & Hyland, for respondent.

DUNBAR J.

The respondent sued appellants for $10,000 for injuries claimed by her to have been caused by the negligence of appellants in maintaining and operating a passenger elevator in the Burke building in the city of Seattle. Upon the trial of the cause verdict was rendered by the jury for $4,000. Motion for new trial was made and denied. Judgment was entered, and appeal taken therefrom.

It would serve no purpose to set forth the circumstances under which the accident causing the injury occurred. On the question of the negligent operation of the elevator the testimony was conflicting. The jury decided the issues in favor of the respondent. It is urged that the court erred in allowing the respondent to ask the witness Dr. Eagleson, over appellants' objection, the following question: 'Is it not a fact that usually such a severe shock as that, had by a woman, especially of her age, leaves them practically the balance of their lives apprehensive and nervous, and affected by it more or less, so far as their nervous organization is concerned?' This was objected to because it was leading and in a sense it was leading; but, inasmuch as it was expert testimony which was being introduced, we do not think any reversible error was committed in admitting the question asked.

It is next contended that the court erred in allowing counsel for respondent, over the objection of counsel for appellants, to bring out of the witness Archie Ester--a witness examined in behalf of appellants--the fact that appellants carried liability insurance upon the elevator. If this state of facts were shown by the record, it would undoubtedly constitute reversible error, for this court has lately held in Iverson v. McDonnell (decided October 14, 1904) 78 P. 202, that evidence tending to show that the defendant in a personal injury case was insured was immaterial, prejudicial and reversible. The cases supporting that doctrine cited by the appellants in this case were considered by the court in the investigation of the case just above referred to; but, while they are applicable to that case, we are not convinced that they are applicable to the case at bar. The following is all the testimony upon the subject of insurance. Upon cross-examination of appellants' witness Archie Ester, who had been relating his view of the circumstances under which the accident took place, the following occurred: 'Q. by counsel for plaintiff: Did you ever make a statement as to how this accident occurred, prior to to-day? A. I made one to Mr. Lamping. Q. Who is Mr. Lamping? Mr. Howe: I object, as immaterial. The Court: Answer the question. Mr. Howe: We except. A. He is the gentleman that insures the elevator. Q. Why did you make that statement to Lamping? A. He asked me to because--I don't know the reason why he wanted the statement from me how the accident occurred.' This is about all that occurred on the subject. The testimony wandered off from this into other fields of inquiry. This would scarcely be testimony sufficient to sustain an allegation that the elevator had accident insurance at the time of this accident. But, even conceding that the jury might be led to believe from this statement that the appellants were protected by an insurance company from accidents which might occur in the operation of the elevator, it seems to us to be very justly contended by respondent's counsel that they were not responsible for it. It is asserted that they did not know who Mr. Lamping was, and that there was no intention of bringing the question of insurance before the jury. It does appear that in the exercise of a proper cross-examination this testimony incidentally cropped out. But certainly the question whether or not the witness had ever before made any statement in relation to the accident was a proper subject of cross-examination, and, after eliciting the fact that he had made a statement to a Mr. Lamping, we know of no reason why the respondent should be prohibited from propounding the very natural inquiry as to who Mr. Lamping was. About all that can be said in this case is that during the cross-examination, which was properly conducted, testimony was disclosed tending to show the insurance of the elevator. But the respondent in no way having been to blame for this, it seems to us it would be unjust that she should be, for this reason, subjected to a reversal of her cause. Especially is this true where there was no motion made to withdraw the testimony from the consideration of the jury. And, while we think with the great weight of authority that in cases of this kind the damage is largely done when the testimony is once admitted to the ear of the jury, yet, where it appeared in as weak a form as it did in this case, and without fault on the part of the plaintiff, all that could have been done would have been the giving of an admonition by the...