Hull v. Seattle, R. & S. Ry. Co.

• Citation: 60 Wash. 162,110 P. 804
• Court: United States State Supreme Court of Washington
• Decision Date: 20 September 1910
• Parties: HULL et al. v. SEATTLER, R. & S. RY. CO.

110 P. 804

60 Wash. 162

HULL et al. v. SEATTLER, R. & S. RY. CO.

Supreme Court of Washington

September 20, 1910

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Elmer E. Hull and another against the Seattle, Renton &amp Southern Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Morris B. Sachs, for appellant.

J. L Waller, Ralph Simon, and Thos. B. MacMahon, for respondents.

FULLERTON J.

The respondents brought this action against the appellant to recover the value of an automobile which was run into and destroyed by a train operated on the appellant's railway. At the time of the accident, the automobile was being driven by a son of the respondent Hull, who had engaged to carry a pleasure party, seven in number, from Georgetown, in King county, to a place on Lake Washington. The road over which the party traveled parallels the appellant's railway for a considerable distance, finally crossing it at a place known as 'Rainier Beach.' The car approached the crossing running at the rate of about eight miles per hour, and reached a point some 20 feet therefrom when its engine suddenly stopped, 'went dead,' as the driver expressed it. The driver sought to revive the engine by manipulating certain of its controls, and in the meantime the car ran forward onto the track by reason of its own momentum, stopping with the rear wheels between the rails of the railway track. Just then a train was heard approaching along the appellant's railway, and three of the passengers who had hastily alighted from the car, ran along the track towards the approaching train, and by shouting and making gestures sought to call the attention of the persons in charge of the train to the position of the automobile. They testify, however, that the train continued its approach without an appreciable diminution in its speed, crashed into the automobile, and threw it from the track against a telephone or trolley pole of the appellant company with such force as to break down the pole, and totally demolish the automobile. On the trial the jury returned a verdict in favor of the respondents, and from the judgment entered thereon this appeal is taken.

In the complaint the respondents alleged that the Winton Motor Carriage Company had sold the automobile in question to the respondent Hull on a conditional contract of sale, reserving title in itself, and that there was still due on the contract from Hull to the company some $1,100. This allegation was denied by the respondent on information and belief. At the trial the respondent Hull while on the stand was questioned concerning the contract, and answered to the effect that there was such a contract existing between himself and his coplaintiff. He was then asked the amount due on the contract, and over the objection of the appellant was allowed to answer. Later on an agent of the motor company was placed on the stand and testified as a witness for the plaintiffs. On cross-examination he was asked concerning this contract, and stated its effect substantially as alleged in the complaint, stating further in answer to a direct question that the contract was in writing. He was thereupon asked to produce the contract when objection was made by counsel for the plaintiff, and the objection sustained by the court. These rulings constitute the errors first assigned. The arguments, we think, are not well taken. The purpose of the allegation in the complaint was to show the relation of the plaintiffs to each other and their right to join as parties plaintiff in bringing the action. Its denial by the appellant raised but a collateral issue only which could be proved without the production of the written contract. State v. McKinnon, 99 Me. 166, 58 A. 1028; Garrison v. Glass, 139 Ala. 512, 36 So. 725; E., J. & E. Ry. Co. v. Thomas, 215 Ill. 158, 74 N.E. 109; 25 Am. & Eng. Ency. Law, 173. There was therefore no error in permitting the respondents to show by parol that they had a joint interest in the property even though a written contract existed between them. The appellant argues further, however, that it was entitled to have the written contract exhibited, since it might have shown the contract price of the machine which would have been some evidence of its value. Had it been shown that the writing recited the contract price of the machine, and had the appellant requested its production in order to present it as a part of its own case, it might have been error for the court to have refused to require its production, but it was not error under the circumstances shown here. The demand to produce the writing was not made on the parties but of a witness under cross-examination. This was not such a demand as to put the parties in default, even were the right to the document undoubted.

In the course of the trial a witness was placed on the stand and questioned concerning the disposition made of the automobile after the accident, and answered to the effect that it was disposed of as junk. He was then asked to state the sum received for it. At this point, the appellant interrupted the examination and requested permission to ask a question for the purpose of ascertaining the competency of the evidence. Permission was granted it, whereupon it elicited from the witness the fact that the junk had been sold in parts to different persons, and that regular books of account had been kept showing such sales and the sums received therefor. The appellant thereupon objection to the witness' testifying to the amount of the sales, contending that the entires in the account books were the best evidence. The objection was overruled, and error is assigned thereon. But manifestly the ruling is without error. A person having knowledge of the sale of a chattel and the amount paid or agreed to be paid for it is a competent witness to the fact, although he may have recorded in his books of account a memorandum of the sale. Indeed, books of account have themselves always been regarded as a species of secondary evidence, admissible in favor of the party keeping them because of the necessities of the case, not because they were the best evidence of the transactions recorded in them. Greenleaf on Ev. (14th Ed.) § 117. The fact that such entries have been made has never been held to preclude the testimony of the person having knowledge of the...