Hansen v. Sandvik

• Decision Date: 07 January 1924
• Docket Number: 17925.
• Citation: 222 P. 205,128 Wash. 60
• Parties: HANSEN et ux. v. SANDVIK et ux.
• Court: Washington Supreme Court

222 P. 205

128 Wash. 60

HANSEN et ux. v. SANDVIK et ux.

No. 17925.

Supreme Court of Washington, En Banc.

January 7, 1924

Appeal from Superior Court, King County; Gilliam, Judge.

Action by H. M. Hansen and wife against L. T. Sandvik and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

Tucker & Hyland and Ford Q. Elvidge, all of Seattle, for appellants.

James R. Chambers, of Seattle, for respondents.

MACKINTOSH, J.

Respondents sued appellants for damages by reason by reason of physicial injuries to the respondent wife in the sum of $3,000; for loss of service, and medical services in the sum of $700, and damages to their Ford delivery truck in the sum of $150 resulting from a collision between their truck and appellants' Scripps-Booth automobile. Several acts of omission and commission on the part of the appellant husband in driving the car of appellants, both under the law generally and the city ordinances, were alleged as grounds of recovery.

Appellants answered by general denials, and affirmatively pleaded contributory negligence, and cross-complained, asking damages for injuries to their automobile in the sum of $300, caused by the same collision, and alleging the same to have been the result of respondent's negligence in the operation of their truck, under the law generally and the city ordinances. These were put in issue by a general denial.

The jury awarded respondents damages in the sum of $1,000, which the court, after motion for judgment notwithstanding the verdict, and for a new trial, allowed to stand.

The collision occurred about 8 o'clock in the evening January 14, 1922, at the intersection of Thirty-Ninth Avenue S.W. and Admiral Way, in West Seattle. The night was rather dark and somewhat foggy. Respondents were both in their truck, the husband driving, and were proceeding easterly across the bridge, intending to cross Thirty-Ninth Avenue and continue east on Admiral Way, and had reached the intersection of Thirty-Ninth and Admiral Way, and were crossing Thirty-Ninth when they came into collision with appellants' car, driven by the appellant husband, who was proceeding westerly along Admiral Way, and had turned to the left, or sourth, at the intersection of the two streets, with the intention of proceeding southward on Thirty-Ninth Avenue S. W.

The version of respondents as to how the collision occurred and the negligence of appellants, amply supported by evidence, was sufficient to take the case to the jury upon the grounds of appellants' negligence. So also was the version and evidence of appellants as to how the collision occurred sufficient to take the case to the jury on the question of respondents' negligence. There was, therefore, no reason for granting judgment notwithstanding the verdict. The only question is whether a new trial should have been granted.

There was no error in denying appellants' application for the appointment of a physician to examine certain X-ray plates of the injuries to the skull of Mrs. Hansen, which had been taken by her personal physician. As a matter of fact, the X-ray plates were examined by a disinterested physician appointed by the court. The picture taken by respondents' personal physician was in the nature of a private communication between the physician and his patient which, until waived by being introduced in evidence by respondents could not be used by appellants. Aspy v. Botkins, 160 Ind. 170, 66 N.E. 462.

Neither was there error in the denial by the trial court of appellants' application for a physician to examine the respondent or her X-ray plate. The application was for a physician of appellants' own selection. To have granted that would have been error. Just v. Littlefield, 87 Wash. 299, 151 P. 780, Ann. Cas. 1917D, 705. But the court did appoint a disinterested physician, thus exercising its discretion, and having done so it was not error to refuse to permit further physical examination. Helbig v. Grays Co., 37 Wash. 130, 79 P. 612; Dunkin v. Hoquiam, 56 Wash. 47, 105 P. 149.

Instruction No. 12 is complained of on the ground that it could only tend to confuse the jury, and was incapable of consideration and analysis by the jury. It is as follows:

'Negligence, in order to constitute a ground for recovery or defense to an action of this character, must be the proximate cause of the accident; in other words, if you should find that either the plaintiff or defendant was negligent in any of the particulars alleged in the complaint, answer, or cross-complaint, you would not be justified in awarding relief to either party, unless you should further find that such negligence was the proximate cause, or proximately contributed to the accident complained of.'

We do not believe that the above instruction, taken in connection with other instruction defining negligence, contributory negligence, and proximate cause, was in any way confusing to the jury. Appellants contend that under this instruction the negligent party could get relief if his negligence was the proximate cause, or proximately contributed to the accident. Under this and other instructions we do not believe that the jurors would so construe the instruction.

Another instruction complained of, No. 16, is criticized, because it tells the jury that, upon the defense of contributory negligence, the negligence of the plaintiff, if any, must have 'materially contributed to the accident of which plaintiffs complain. * * *'

Appellants contend that this instruction introduces a new element into the law of contributory negligence; that of materially contributing to the accident. 'Material' is defined as 'important'; 'more or less necessary' 'having influence or effect,' etc. Black's Law Dictionary. ...