Hoyt v. Independent Asphalt Paving Co.

• Decision Date: 26 April 1909
• Citation: 101 P. 367,52 Wash. 672
• Parties: HOYT et ux. v. INDEPENDENT ASPHALT PAVING CO.
• Court: Washington Supreme Court

101 P. 367

52 Wash. 672

HOYT et ux. v. INDEPENDENT ASPHALT PAVING CO.

Supreme Court of Washington

April 26, 1909

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

Action by Frederick W. Hoyt and wife against the Independent Asphalt Paving Company. Judgment for plaintiffs, and defendant appeals. Reversed on condition.

Peters & Powell, for appellant.

DUNBAR J.

The defendant, the Independent Asphalt Paving Company, entered into a contract with the city of Seattle for the paving of East Jefferson street from Ninth avenue to Twenty-First avenue. It is unnecessary to describe the character of the work which was to be done; but there was a double line of electric car tracks running along the middle of East Jefferson street, owned and operated by the Seattle Electric Company. East Jefferson street runs east and west. Abutting upon it to the south, and lying between Twentieth and Twenty-First avenues, is the residence property of the plaintiffs. It is about 70 feet from the Twentieth avenue crossing. Jefferson street on both sides of the double tracks had been excavated for a depth of about 12 inches preparatory to the laying of a concrete bed. This concrete had been laid between the tracks, between the rails, and to a distance of 18 inches to the outside of the outside rail. At the intersection of Jefferson street and Twentieth avenue, the contractor had laid planking between the tracks, between the rails, and for about four feet on either side of the outside rails, one plank on top of the other. These planks were 3 inches by 10 inches, and 16 to 20 feet long and were laid lengthwise on the rails. The entire street was excavated and torn up in this manner. On the 12th of July one of the plaintiffs, Aletha Hoyt, in alighting from a car at the intersection of Twentieth avenue and East Jefferson street, stepped down upon this planking. One of the planks tipped, causing her to sprain her ankle and fall, hurting her shoulder and head, and, it is alleged, causing a displacement and inflammation of the pelvic organs. She brought this action for damages in the sum of $20,000. Defendant denied any negligence in the construction or maintenance of the crossing or knowledge of its danger, and pleaded affirmatively negligence and assumption of risk on the part of the plaintiff. The jury rendered a verdict for the plaintiffs in the sum of $1,900. Judgment was entered and appeal taken.

It is alleged that the court erred in instructing the jury that they might allow damages to the respondent for the expense and for the probable pain and suffering of a future surgical operation which might be necessary by reason of the alleged injuries to the respondent's pelvic organs; the jury being instructed that they might allow damages to the extent of $300 for the operation and $300 for hospital expenses this being the amount which it was shown by the testimony would be the probable cost of the operation. The contention is that from all the evidence there was no substantial evidence to show that the condition which was claimed to exist by the respondent Aletha Hoyt was in any way the result of, or induced by, the accident; but that the condition existed and the operation would be necessary, if at all bacause of old injuries resulting from childbirth. We are of the opinion that there was no testimony in this case to justify this instruction. Dr. Gardner, the family physician who was introduced by the respondent and who had made an examination of her, testified emphatically that her condition which would necessitate an operation was not caused, and could not have been caused, by the fall; and this on direct examination by counsel for respondents. This statement and conclusion were repeated so often and in so many different forms that it was made as plain as testimony could make it that the displacement of the uterus, and tears and wounds of adjacent parts, were not caused by the fall, but already existed before the accident. It is true that, in answer to a very long, involved, and indefinite hypothetical question, the witness afterwards said that, conceding the statement incorporated in the question to be true, the pain and evident suffering were possibly provoked by the accident. But this in the small degree in which it sustained respondent's contention is absolutely contradictory of the previous statements made by the witness in answer to plain questions which he evidently understood. There was also other medical testimony, to the effect that the laceration and condition of the pelvic organs were unquestionably the...