Henry v. Navy Yard Route

• Decision Date: 02 February 1917
• Docket Number: 13629.
• Parties: HENRY et al. v. NAVY YARD ROUTE.
• Court: Washington Supreme Court

162 P. 584

94 Wash. 526

HENRY et al. v. NAVY YARD ROUTE.

No. 13629.

Supreme Court of Washington

February 2, 1917

Department 2. Appeal from Superior Court, Kitsap County; Walter M French, Judge.

Action by Edward Henry and another against the Navy Yard Route. Judgment for plaintiffs, and defendant appeals. Affirmed.

Morris & Shipley and Paul S. Dubuar, all of Seattle, for appellant.

F. W Moore, of Bremerton, and Charles H. Miller, of Seattle, for respondents.

FULLERTON J.

The appellant is a common carrier of passengers operating a line of steamboats between the city of Port Orchard in Kitsap county and the city of Seattle in King county. On July 13, 1915, the respondent Eliza Henry became a passenger on one of the appellant's boats and was carried from Port Orchard to the boat landing at Seattle. On the arrival of the boat at Seattle the respondent was directed to disembark by way of a stairway in the stern of the boat and while descending the stairway, she fell and received injuries for which this action was brought. The jury returned a verdict in favor of the respondents for the sum of $600, and from the judgment entered thereon this appeal is prosecuted.

In their complaint the respondents alleged that the stairway was----

'negligently constructed, being very narrow, with insufficient number of steps for its height, and too great a pitch, without any handrail for the support of persons using the same, and was further defective, in that upon the edge of the steps of the said stairway was a brass cleat, negligently constructed and placed thereon, not properly secured, and which defendant had negligently allowed to become out of repair, in that at various points some of the brass cleats were bent upward for a space of from one-fourth of an inch to one inch, which facts were known to the defendant and its agents, or by the use of reasonable diligence could have been known to them, and which were unknown to the plaintiffs, and when about one-half the way down the said stairway, the heel of the shoe of the plaintiff Eliza Henry caught in the projecting edge of one of the said brass cleats, throwing her violently forward, and that by reason of the fact that defendant had negligently failed to provide a handrail for the said stairway, the said plaintiff was unable to prevent herself from falling when she endeavored to stay her fall, as she could have done had said handrail been provided, and she pitched heavily down about one-half the length of the said stairway,' injuring 'her left shoulder, back, spine, kidneys, and internal organs.'

The appellant, on appearing in the action, moved that the complaint be made more definite and certain as to the nature of the injuries received by the respondent, or, in the alternative, that a bill of particulars be furnished, showing more fully such injuries. This motion the trial court refused to grant, and its refusal constitutes the first error assigned. But the appellant, after the motion had been overruled, answered over, and went to trial on the merits of the action. This, under ordinary circumstances, is a waiver of the objection. It must appear at least that the appellant was prejudiced in presenting its defense by want of definiteness in the allegations, before it can claim error in the ruling of the court. No such condition is shown in the present record. It appears, moreover, that during a recess in the trial the appellant took advantage of the statute (Laws 1915, c. 63, p. 236; Rem. Code, § 1230-1), and caused the injured respondent to be examined as to the nature and extent of her injuries by three physicians and surgeons. Two of these were subsequently called by the appellant and testified fully as to the nature of the respondent's injuries. We can hardly think that the appellant's defense could have been more fully developed had the plaintiff been compelled to state the nature of her injuries with the fullness that the appellant desired. Since no prejudice resulted from the ruling of the court, the ruling, even though technically erroneous, cannot avail on an appeal.

It is next contended that there was a variance between the pleadings and the proofs as to the cause of the injury. On the motion of the appellant, the court withdrew from the jury all the allegations and proofs of negligence save that which related to the condition of the brass nosings on the edge of the steps. One of these it was shown had been suffered to become loose so as to permit it to rise above the carpeting on the steps, and it was on this, the respondent testified, that she...