Gayson v. Daugherty

• Decision Date: 21 April 1937
• Docket Number: 26364.
• Citation: 190 Wash. 133,66 P.2d 1148
• Parties: GAYSON v. DAUGHERTY.
• Court: Washington Supreme Court

66 P.2d 1148

190 Wash. 133

GAYSON v. DAUGHERTY.

No. 26364.

Supreme Court of Washington

April 21, 1937

Department 2.

Appeal from Superior Court, King County; Ralph C. Bell, Judge.

Action by Joseph Kenneth Gayson, as guardian ad litem of Beatrice Gayson, a minor, against Anna M. Daugherty. Judgment for plaintiff, and defendant appeals.

Affirmed.

Kahin &amp Carmody, of Seattle, for appellant.

Cameron Sherwood, of Walla Walla, for respondent.

BEALS Justice.

At about 8:45, on the morning of December 16, 1935, Beatrice Gayson, on her way to the Franklin High School, in which she was a pupil, was standing on the southwest corner of the intersection of Dearborn street and Tenth Avenue South, in the city of Seattle, waiting for a street car. Dearborn street runs generally east and west, and is crossed at right angles by Tenth Avenue So. The former highway was paved with brick, save the middle of the street, which was occupied by car tracks. Tenth Avenue South is an unpaved street, surfaced with gravel. Along each of the streets are concrete sidewalks. On the southwest corner of the intersection stood a wooden telephone pole of the usual type, and two or three feet west thereof stood a four by four post carrying a sign bearing the words, 'School Crossing, Stop When Occupied.' While waiting for a street car, Beatrice was leaning against the southerly side of the telephone pole facing south. Both the telephone pole and the signpost stood in the concrete sidewalk.

The defendant in this action, Anna M. Daugherty was a teacher in the Franklin High School, and was residing some distance to the north of the intersection mentioned. On the morning in question, she started for the school, driving her Ford coupé. She proceeded down Fifth avenue to Dearborn street, then turned east and proceeded up that thoroughfare. It had rained not long Before , and the streets were wet. The morning was cool, but Miss Daugherty had noticed no ice nor snow. She testified that she had been driving at approximately twenty-five miles per hour. As Miss Daugherty approached the corner of the intersection where Beatrice was standing, her automobile skidded, struck the telephone pole and then the signpost, breaking the latter off even with the ground. The signpost was thrown several feet, and struck Beatrice, inflicting upon her injuries for which her father, as her guardian, sued in this action. Recovery was also asked for the amount paid for doctors and other incidental expenses. The defendant denied liability, and the action was tried to a jury, which returned a verdict for $750 in favor of Beatrice Gayson, and one in her father's favor for $266.20. From a judgment entered on the verdict, the defendant has appealed.

Error is assigned upon the denial of appellant's motion for a nonsuit; upon denial of her motion for judgment in her favor notwithstanding the verdict; and upon the entry of judgment against her. Appellant also contends that the trial court erred in denying her motion for a mistrial because of certain testimony which appellant contends wrongfully brought Before the jury the matter of indemnity insurance. Appellant also contends that the verdict in favor of Miss Beatrice is excessive, and that the amount thereof should be reduced.

We shall first discuss the second error assigned. In the course of the trial, Dr. H. J. Green, who had attended Beatrice after her injuries, testified as a witness for respondent. He stated that his bill for professional services rendered in connection with the case had not been fully paid. On direct examination, he testified that the X-ray plates which he had studied had been taken by a doctor other than himself, and on cross-examination counsel for appellant proceeded to interrogate him as to the occasion for calling in another doctor to make the X-ray exposures, causing additional expense, when the witness himself might have attended to this phase of the case. In the course of this cross-examination, the following occurred:

'Q. I have no criticism of you, doctor, but the reason was that he started taking the X-rays, and that is the reason she went to the two of you. But subsequently to the first X-ray, you could have taken care of all this work? A. That is right; but in medical-legal cases, practically all of those we get are taken by an X-ray expert.

'Q. Now, you say, 'in medical-legal cases'? A. Yes, sir.

'Q. You knew this was a medical-legal case when this young lady first came to you, didn't you? A. The lady's car was covered by insurance, that is all I know.'

Immediately after the witness made the answer last above quoted, counsel for appellant suggested that he desired to present an argument, whereupon the court promptly instructed the jury to wholly disregard the answer of the witness, and ruled that the answer 'is stricken from this case for every purpose.' Appellant's counsel then moved for a mistrial, which motion the trial court denied. Appellant argues that the refusal of the court to grant a mistrial was error, which entitles appellant to a reversal of the judgment appealed from.

Appellant's counsel was apparently endeavoring to show that unnecessary expense had been incurred in connection with the young lady's injury. In his first answer quoted, the witness used the phrase 'medical-legal cases.' This phrase was repeated by appellant's counsel in each of the next two questions. It must be held that the answer given by the witness, of which appellant complains, was invited by the cross-examination. The court immediately instructed the jury to disregard the answer, and struck it from the record. Assuming that a 'medical legal case' is a case concerning a patient who may be involved in a lawsuit concerning the injury which is being treated, appellant's counsel was deliberately pursuing a line of cross-examination which might well bring some such answer as the witness made. Upon the record, it cannot be held that the trial court erred in refusing the motion for an order declaring a mistrial.

Upon her first assignment of error, appellant argues that respondent failed to produce substantial evidence of negligence on the part of appellant, and that judgment should have been entered in appellant's favor as matter of law. The injured girl, standing with her lack to the street, did not see the approach of the automobile. When she felt the jar caused by the automobile striking the telephone pole, she was projected, or jumped, in the direction towards which she was facing and into the path of the flying sign post. There were two witnesses to the accident beside appellant--Earl N. Green and Walter Mancevich, high school students, who were approaching the intersection from the south along the sidewalk on the west side of Tenth avenue. These boys saw Beatrice leaning against the telephone pole, looking in their direction, and they observed appellant's automobile approaching from the west at...