Hase v. City of Seattle

• Decision Date: 04 February 1910
• Parties: HASE v. CITY OF SEATTLE.
• Court: Washington Supreme Court

107 P. 515

57 Wash. 230

HASE v. CITY OF SEATTLE.

Supreme Court of Washington

February 4, 1910

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Elizabeth Hase against the City of Seattle for personal injuries. Plaintiff had judgment, and defendant appeals. Affirmed on condition that plaintiff remit a part of the damages awarded.

See also, 98 P. 370, L. R. A. (N. S.) 938.

Scott Calhoun and James E. Bradford, for appellant.

Shorett McLaren & Shorett, for respondent.

CROW J.

Action by Elizabeth Hase against the city of Seattle to recover damages for injuries sustained by falling through a defective sidewalk. From a judgment in her favor the defendant has appealed.

One Stella Schurtleff, who was with respondent at the time of the accident about 9:30 p. m. on March 23, 1907, was called as a witness in her behalf. On her cross-examination, counsel for appellant, in asking how far she and respondent could see when walking, proceeded as follows: 'Q. You could see ten or twelve feet at least? A. I suppose I could. Q. If a person had been exercising ordinary care in going along there in the night, and looking down, you would have had no difficulty in seeing the missing plank, would you? Mr. Shorett (counsel for respondent): I object to that as an improper question. The Court: She may answer. A. I don't know about that. We were walking right along talking. Q. Well, you think you could see ten or thirteen feet? You would have had no difficulty in seeing a hole in the sidewalk if you had looked down, would you? A. Well, I suppose if we had been looking right down.' On redirect examination the following occurred: 'By Mr. Shorett: Q. Were you and Mrs. Hase negligent in coming down that hill? Mr. Bradford (counsel for appellant): I object to that as incompetent, irrelevant, and immaterial. That is a question of fact to be passed upon by the jury and not by the witness. The Court: I think the objection is well taken. Q. At the time you were going down that walk, were you going down there in the ordinary manner? Mr. Bradford: That is objected to as leading and argumentative, and asking the same question indirectly. The Court: That is somewhat leading, but she may answer. A. Yes. Mr. Bradford: I now move to strike the answer from the record, for the reason that it is incompetent, irrelevant, and immaterial. The question was in the most leading and suggestive from that could be imagined, and is asking the witness to pass upon the fact which is the exclusive province of the jury to pass upon. The Court: Motion denied. Mr. Bradford: Exception.' Appellant's counsel now contends that the trial judge erred in overruling his objection and his motion to strike; that the issue of contributory negligence was for the jury, and that the witness was permitted to express her opinion as to whether respondent was negligent, thus invading the province of the jury. It is manifest that no prejudicial error was committed. Appellant's counsel, over respondent's objection, had been permitted to ask the witness whether a person exercising ordinary care could observe the absence of the missing plank, and although respondent's attorney afterwards asked her whether respondent did exercise ordinary care, it does not follow that appellant was thereby prejudiced or that she expressed any opinion as to contributory negligence on the part of the respondent.

Appellant next contends that its motion for a nonsuit should have been granted, insisting that the respondent was guilty of contributory negligence as matter of law and not entitled to recover. We have examined all the evidence, and find it amply sufficient to convince us that the issue of contributory negligence was a question for the jury.

Appellant...