Jordan v. City of Seattle

• Decision Date: 08 November 1902
• Citation: 70 P. 743,30 Wash. 298
• Court: Washington Supreme Court
• Parties: JORDAN v. CITY OF SEATTLE.

70 P. 743

30 Wash. 298

JORDAN v. CITY OF SEATTLE.

Supreme Court of Washington

November 8, 1902

Appeal from superior court, King county; W. R. Bell, Judge.

Action by Margaret Jordan against the city of Seattle for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

See 66 P. 114; 70 P. 54.

Mitchell Gilliam and William Parmerlee, for appellant.

J. P Ball and I. D. McCutcheon, for respondent.

DUNBAR J.

This is an appeal from a judgment rendered in the superior court of King county on the 2d day of January, 1902, in favor of respondent and against appellant, in the sum of $6,090, for personal injuries alleged to have been sustained by the respondent by reason of a defective sidewalk. This case was heretofore before this court, and was decided September 5 1901. In the former trial, on the challenge to plaintiff's evidence, the case was taken from the jury and the cause dismissed, for the reason that the evidence showed contributory negligence on the part of the plaintiff. Upon appeal the case was reversed, this court holding that whether, under the circumstances as shown by the testimony, the plaintiff was guilty of contributory negligence, was a question for the jury, and upon a new trial the result was as above indicated. It is contended by the appellant that the court erred in denying appellant's motion for a nonsuit; that the case presented by the record on this appeal is much stronger in favor of appellant than upon the former appeal. It is not necessary to again discuss the evidence in this case, for a comparison of the record on the present appeal with that on the prior appeal convinces us that there was no substantial difference in the testimony offered by the plaintiff in the two different trials. Therefore the court did not err in denying appellant's motion for a nonsuit.

The second assignment is that the court erred in sustaining an objection to the following question: 'I will ask you what physician, if any, has treated your leg since the time of the last trial.' No page of the transcript is referred to by the appellant in its brief, but an examination of the record shows that the question upon which this assignment of error is based was answered by the plaintiff. On page 37, after some discussion between the attorneys on this proposition, the question was asked: 'What physician, if any, besides the one you have mentioned (Dr. Bolink), has examined your leg with reference to giving you treatment for it; and from what physician, if any, have you received treatment for your leg, besides the one you mentioned? Answer. Dr. Bolink has been treating it since the--Question: I say except Dr. Bolink.' Mr. McCutcheon, counsel for the plaintiff, here intervened as follows: 'The question involves this,--as to whether he is the only one.' To which the witness answered: 'Yes, sir; he is the only one that has treated it.' Then the question by counsel for the defendant: 'He is the only one that has treated your leg? Answer. Yes, sir. Question. Or examined it for the purpose of treatment? Answer. Yes, sir.' We think this excerpt from the testimony disposes of this assignment.

Again it is alleged that the court erred in sustaining an objection to the following question, on page 48 of the transcript: 'Did not he (Dr. Bolink) also tell you at that time that the only way that you could cure that leg would be to go to the hospital and rest,--keep off your feet, and then it would get well?' This was properly rejected as not being proper cross-examination. It is stated by counsel for the appellant in its brief that respondent had testified in her direct examination of her visit to Dr. Bolink for the purpose of getting a prescription, and a part of the conversation had between her and the doctor. Again the page of the record where such statement is found is not referred to, but we have examined the testimony of the plaintiff in chief carefully, and no such testimony appears. In fact, she did not testify concerning any conversation with Dr. Bolink, or any other doctor. She simply stated that it cost her $15 a month for medicine to swath her leg with. The testimony that is ascribed to her by the counsel was drawn but by him on cross-examination.

The third assignment is that the court erred in sustaining the objection to the following question: 'Mrs. Jordan, you knew that there was a way from your house by crossing,--by going up a short distance and crossing over and walking over on the opposite side of the street; that there was a walk there that was not broken up or in any bad shape, but perfectly safe, didn't you?' This question was properly rejected as not being material. Had it been material, it would have been a defense to this action, if this knowledge could have been traced to the plaintiff. But this court has decided many times, in common with all other courts, that a resident of a city has a right to travel upon its streets and walks, and has a right to travel the most direct course. This question was really passed upon under the allegation of contributory negligence made in the previous case.

There is also assigned as error the action of the court in sustaining an objection to the following question asked Dr. Newland, a witness in behalf of the appellant: 'What, in your opinion, would be a reasonable fee for a physician for his services performed for the purpose of effecting a cure?' This error, if error it was under any circumstances, is without prejudice here, for no doctor's fees were claimed in the trial of the cause, and none were allowed by the court or are incorporated in the judgment.

On the question of whether the disease was permanent or not there was a conflict in the testimony which went to the jury. The tenth, eleventh, and twelfth instructions are as follows:

'If the jury believe from the evidence that plaintiff was injured through the negligence of defendant, and that, at the time of the injury, plaintiff was suffering from a varicose condition of the veins in the lower part of the left leg, and that such injury aggravated, augmented, and accelerated such varicose condition, and the suffering occasioned thereby, then your verdict will be for the plaintiff, unless you find that these conditions not only might have arisen, but must have arisen, if the negligence of the defendant (if you find it negligent in the premises) had not intervened. If the original act of the defendant was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury, through the intervention of other causes which were not wrongful, the rule is that the injury shall be referred to the

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