McCreedy v. Fournier

• Decision Date: 11 December 1920
• Docket Number: 15994.
• Citation: 113 Wash. 351,194 P. 398
• Court: Washington Supreme Court
• Parties: McCREEDY et ux. v. FOURNIER et al.

194 P. 398

113 Wash. 351

McCREEDY et ux. v. FOURNIER et al.

No. 15994.

Supreme Court of Washington

December 11, 1920

Department 2.

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

Action by Warren R. McCreedy and wife against George Fournier and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

James B. Murphy and Ward C. Kumm, both of Seattle for appellants.

Stanley J. Padden, of Seattle, for respondents.

MITCHELL J.

Warren R. McCreedy and his wife brought this action for damages on account of personal injuries to both and for injuries to their automobile, occurring in a collision alleged to have been caused by the negligent operation by the defendants, George Fournier and Stanley Fournier, of their own automobile on a county highway in King county. There was a jury trial resulting in a verdict of $10,000 in favor of the plaintiffs. From the judgment on the verdict, the defendants have appealed.

The collision occurred shortly after 7 o'clock on the morning of September 2, 1919. The road, running east and west, was a well-improved graveled highway, the traveled portion of which was variously estimated at 15 to 20 feet in width. Respondents were going east, appellants west. As is usual in such cases, there is a sharp conflict in the proof of the respective parties as to most of the essential facts and surroundings of and at the time of the colision. However, it appears from the bulk of the testimony on both sides there was a foggy condition of the weather at that time, and especially at the place the accident happened. It is the contention of the respondents that the collision occurred well over on their right-hand side of the road; that for some distance they had been traveling on the right of the center of the road, at 10 or 12 miles an hour, until, on seeing the approaching car, they slowed down to about 5 miles per hour and turned about as far to the right as the roadway permitted, when the collision occurred; that both headlights of their car were burning; that the appellants were traveling on the wrong side of the road, at a speed in excess of 30 miles an hour, and were using no light of any kind. There is abundant evidence, much of it from wholly disinterested witnesses, to support these contentions, and as the verdict was in favor of the respondents, we accept these as established facts.

It is claimed there was error in allowing the witness for the respondents to testify, over objections, that about 8 o'clock that morning he approached the scene of the accident from the east (the same direction the appellants traveled) and noticed swerving zigzag tracks of an automobile driven on the left-hand side of the road, and that the tracks led up to the immediate scene of the accident. The objection urged is that such vital testimony should not have been allowed, because there was proof of the passing of several other automobiles after the collision occurred and prior to the witness reaching the scene. But in his argument counsel overlooks the fact that the witness testified positively that there had been a small mist of rain and the dust had been settled; that he did not see any other tracks on the road that attracted his attention; that he noticed those tracks leading to the scene of the accident; that he traced the tracks to where respondents' car was on its right side of the road around which the ground was torn up, and observed the continuation of the tracks of the automobile from the immediate scene of the collision and where the ground had been torn up, along the road to a point at which respondents' testimony shows appellants' car stopped after the collision. Further, counsel overlooks the fact that the proof he refers to, the passing of several automobiles came from the appellants' witnesses after the witness whose testimony is complained of had been completed. The evidence was clearly admissible; its weight was for the jury.

It is claimed the court committed error in admitting, over objections, the testimony of Dr. Hawley, as to the future disability of Mr. McCreedy, who was so severely injured in the danger zone of the right eye that an operation including the stitching of the eye on the surface was necessary. Dr. Hawley is an eye specialist and performed the operation, and while he and a specialist called by the appellants both testified that the operation was entirely successful, it clearly appears the usefulness of the eye is nearly destroyed, permanently. The testimony objected to was an opinion by Dr. Hawley as to the danger or reasonable probability of sympathetic inflammation, technically known as 'ophthalmia,' in the left eye, with the resultant necessity of removing the right eye. The objection urged is that it left the jury to give damages for consequences that were contingent, speculative, or merely possible. While Dr. Hawley admitted the trouble might never happen, he testified that it did occur in more than half of the cases. Among other things, he testified:

'Q. What is the probable result of the condition that exists in the eye as to taking this eye out? A. Sympathetic inflammation may arise. Q. In the other eye? A. Will arise. Q. Sympathetic inflammation in the other eye, is that what you mean? A. Yes, sir.'

And again he said: 'I think it very apt to happen.'

We think the evidence was proper to go to the jury under the rule in the case of Gallamore v. Olympia, 34 Wash. 379, 75 P. 978; Holt v. School District No. 71, 102 Wash. 442, 173 P. 335.

In addition, appellants are in no position to complain in this respect, for the testimony of their own expert is to practically the same effect. Dr. Swift, a recent army surgeon and eye specialist, called by the appellants, testified that he examined Mr. McCreedy twice after the operation and after the removal of the stitches; that Dr. Hawely took exceeding good care of the case and got a nice result; that it was a very dangerous wound of the eye; and that in the army an eye injured such as this would be removed in 90 per cent. of the cases to prevent sympathetic inflammation, while in civilian life his estimate of the reasonable probability of sympathetic inflammation was 50 per cent. Still further, among other things, he testified:

'A. Bu

...