Halverson v. Seattle Elec. Co.

• Citation: 77 P. 1058,35 Wash. 600
• Parties: HALVERSON v. SEATTLE ELECTRIC CO.
• Decision Date: 21 September 1904
• Court: United States State Supreme Court of Washington

77 P. 1058

35 Wash. 600

HALVERSON v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

September 21, 1904

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Alexia Halverson against the Seattle Electric Company. From a judgment in favor of plaintiff, defendant appeals. Reversed on condition.

Struve Hughes & McMicken, for appellant.

Walter S. Fulton, Vince H. Faben, and T. D. Page, for respondent.

MOUNT J.

Plaintiff brought this action against defendant to recover damages for the death of her husband, N. P. Halverson. She avers in her complaint that on the 26th day of December, 1902, the said N P. Halverson became a passenger on one of defendant's cars running from the city of Seattle to Ballard, that the defendant failed and neglected to provide a gate or railing around the platform of said car, and that defendant negligently permitted the said car to become overcrowded with passengers, so that the said N. P. Halverson was prevented from obtaining a seat, and was compelled to stand on the platform of said car. She makes the following allegation of negligence: 'That at Stewart street and Western avenue, in the city of Seattle, on the line of defendant's road leading to Ballard, there is a sharp curve and turn; that when said car reached said point, to wit, at about 5:15 p. m. on said day, the motorman in charge of and propelling the same negligently and carelessly failed and neglected to slacken the speed of said car, and negligently and carelessly turned on a heavy current of electricity, without warning or notice to the said N. P Halverson, and while the said N. P. Halverson was in all things exercising due care, thus negligently and carelessly causing said car to start forward violently, and to run around said bend and curve rapidly and with a lurch and jerk, thereby throwing said N. P. Halverson from said car to the ground, and inflicting upon the said N. P. Halverson mortal wounds, from which said mortal wounds the said N. P. Halverson languished, and languishing died, in the city of Seattle, Washington, on the 27th day of December, 1902.' She further avers that the deceased was a photographer, having an established business in the town of Ballard, and was able to earn, and was earning, in the prosecution of his business, the sum of $2,000 per year. Defendant, by its answer, put in issue the allegations of negligence, and those in relation to the earning capacity of the said deceased and the damages suffered by plaintiff, and pleaded the following affirmative defense, to wit: 'That on the 26th day of December, 1902, the said N. P. Halverson boarded one of defendant's cars on Western avenue at or near its intersection with Pike street, which said car was bound to the town of Ballard; that said N. P. Halverson entered said car in the front vestibule thereof, and remained standing near the step of said car; that he failed and refused to occupy a seat vacant in said vestibule, but carelessly and negligently stood near the step of said car, smoking a cigar, and without holding to any of the bars or rods placed there for that purpose, and, while said car was proceeding along one of the curves in the track, rendered necessary by the irregularity of the street, said N. P. Halverson fell from said car to the street, and received injuries from which he subsequently died; and this defendant avers that the injuries and damage, if any, sustained by the plaintiff, were caused and contributed to by the aforesaid negligent acts of the said N. P. Halverson.' The foregoing affirmative defense was put in issue by the reply. The undisputed facts developed on the trial of the cause are as follows: The plaintiff's husband, N. P. Halverson, had for about three years been engaged with his wife in conducting a photograph gallery in the town of Ballard. Defendant owned and operated a street railway line between the city of Seattle and Ballard, which line, as it leaves the city, runs along Western avenue; starting at the foot of Columbia street, and extending northerly toward Ballard. After reaching Pike street there is a grade of about 6 per cent. to Stewart street; the hill terminating at Virginia street, about one block further on. About 5:15 o'clock p. m. on the 26th day of December, 1902, the said N. P. Halverson offered himself as a passenger on one of defendant's cars at the intersection of Pike street with Western avenue. At this time the seats within the body of the car were filled, and persons were standing in the car, although there was standing room therein for more. Said Halverson was smoking, and boarded the front platform or vestibule of the car. There is no evidence showing the motive of said Halverson in entering the vestibule, except as above stated. The car was about 42 feet long, and had a vestibule at each end. These vestibules were exactly alike. They were entirely cut off from the body of the car by a partition running from side to side. Immediately in front of this partition was a seat running crosswise the entire width of the car, and facing the front. This seat was 7 feet 9 inches long, and capable of holding five or six persons. Within the vestibule and in the extreme front of the car were the motor box and brake, between which stood the motorman. The vestibule was entered at the opening on either side thereof. Halverson entered the front vestibule at the entrance or opening on the east side, the car facing north. At the time he entered, four persons were sitting on the seat in the vestibule--two women and two men; the women being on the end where Halverson entered. Two or three men were also standing in the vestibule. Halverson stood at the entrance where he boarded the car, with his back to the street, and facing the vestibule. He remained in that position until he fell from the car. He had a package in one arm, and was smoking a cigar. From Pike street to Stewart street the distance is a little more than a block. At the intersection of Stewart street, Western avenue, along which the car was running, changes its direction northerly, and at this point the tracks of defendant's line curve to conform to the direction of the avenue. This requires a double or compound curve, both being curves of large radius. After leaving Pike street, the car proceeded up the hill to Stewart street, and while passing through the curves the said Halverson, at the further curve, fell from the car to the street, striking his head and receiving injuries from which he died the following day. The photograph business conducted by plaintiff and her husband yielded an income of about $2,000 a year. Halverson had been in the photograph business for about ten years, in Chicago, Seattle, and Ballard, which covered the period of his married life; and the accumulations of those years consisted by a small building on leased land, used as a photograph gallery (in which they also lived), together with the photographer's equipment and supplies. Plaintiff and her husband had no children. At the close of all the testimony the defendant challenged the sufficiency of the evidence to entitle the plaintiff to recover. This challenge was denied, and exception taken. The case was then submitted to a jury, which returned a verdict in favor of plaintiff for $20,000. A motion for new trial was denied, and judgment entered upon the verdict. Defendant appeals.

Appellant first insists that the court erred in overruling objection to questions propounded by respondent to the witness J. R. Dickson, as follows: 'Q. At what rate of speed, in your opinion and judgment, ought a car to be run into that curve, in order to be operated with safety to passengers on it, basing your answer upon your experience as a motorman upon that road?' 'Q. You may state whether, in your judgment and opinion, based upon your experience as a motorman upon that road, a car, with safety to passengers, can be run into that curve at a rate of speed at from six to eight miles per hour.' These questions were objected to upon the ground that the witness had not shown himself competent to testify. The witness had testified that he was familiar with the road throughout its entire length, and knew the curve; that he had been a motorman over this same line for six or seven months; that he was familiar with the speed of cars; and that, in his judgment, the car was running through the curves at the time of the accident at between seven and eight miles per hour. We think this evidence qualified the witness to answer the questions. There seems to be no well-defined rule by which to measure the qualifications of an expert witness, and it rests largely in the discretion of the trial court to determine them. 12 Am. & Eng. Enc. of Law (2d Ed.) p. 427; Traver v. Spokane Street Railway Co., 25 Wash. 225, 65 P. 284. Appellant argues other grounds for the exclusion of these questions, but they were not raised by the objection made at the time, and for that reason we shall not consider them. Gustin v. Jose, 11 Wash. 348, 39 P. 687.

Appellant next contends that the court erred in permitting Mrs Halverson to testify over defendant's objection in respect to the income from their business, without producing the books. After Mrs. Halverson had testified that she was associated with her husband, had helped him in the business, and was familiar with the amount of business he was doing, and knew what he was earning prior to his death, she stated the amount at 'about $2,000 per year.' She thereupon testified as follows: 'Q. What did you base your estimates upon? A. On the books. Q. And the amount of business that you took in? A. Yes, sir. Q. And the receipts that you derived from it--revenue? A. I kept the books.' Upon cross-examination she testified as follows: 'Q. Well, do you know what your...