Oyster v. Dye

• Decision Date: 04 March 1941
• Docket Number: 28285.
• Citation: 7 Wn.2d 674,110 P.2d 863
• Parties: OYSTER et ux. v. DYE et ux.
• Court: Washington Supreme Court

110 P.2d 863

7 Wn.2d 674

OYSTER et ux. v. DYE et ux.

No. 28285.

Supreme Court of Washington

March 4, 1941

Department 2.

Action by B. M. Oyster and wife against Clifford Dye and wife to recover for personal injuries sustained in an automobile collision. From a judgment of dismissal, the plaintiffs appeal.

Judgment reversed, with instructions.

Appeal from Superior Court, Lewis County; W. O. Parr, Judge.

Lee J. Campbell, of Chehalis, and C. D Cunningham, of Centralia, for appellants.

Lioyd B. Dysart, of Centralia, for respondents.

BEALS Justice.

Plaintiffs herein, B. M. and Ethyle T. Oyster, sued defendants, Mr. and Mrs. Clifford Dye, for damages suffered by plaintiffs as the result of personal injuries sustained in an automobile collision between plaintiffs' car, driven by Mr. Oyster and a truck owned and operated by defendants, driven by one William Fabey. June 23, 1938, plaintiffs, accompanied by their guests, Mr. and Mrs. Hollis and their infant child were driving in a Plymouth sedan, the property of Mr Oyster's employer, in a northwesterly direction along state highway No. 9, an arterial, a few miles northwest of the town of Oakville, in Grays Harbor county. Defendants' truck, carrying a ton of milk, was approaching the highway from the east. Each vehicle was in plain view. There was a stop sign on the road along which the truck was approaching, but the driver of defendants' truck did not stop Before entering the highway. The vehicles collided in the intersection, plaintiffs' car striking the side of the truck.

In their complaint, plaintiffs alleged that defendants' driver was negligent, in that he entered the highway without stopping, and failed to accord plaintiffs' car the right of way, to which plaintiffs were entitled. In their answer, defendants denied that their driver had been negligent, and pleaded contributory negligence on the part of Mr. Oyster. This affirmative defense having been denied by plaintiffs in their reply, the action was tried to a jury, which returned a verdict in favor of the defendants. Plaintiffs' motion for new trial having been denied, judgment was entered dismissing the action, from which plaintiffs have appealed.

Error is assigned upon the overruling of appellants' objections to certain questions propounded to Mr. Oyster on cross-examination; upon the admission of evidence introduced by respondents over appellants' objection; upon the giving of four instructions; upon the refusal of the court to give an instruction requested by appellants; upon the denial of appellants' motion for a new trial; and upon the entry of judgment dismissing the action.

It appears from the evidence that appellants were driving upon an arterial highway; that respondents' truck was approaching from appellants' right along a side road, upon which stood a stop sign. The driver of the truck admitted that he did not stop at the stop sign, and stated that he thought he had plenty of time to cross the highway in front of appellants' car. In view of our conclusion that a new trial must be granted, further discussion of the evidence is unnecessary.

Appellants asserted no claim for damages on account of loss of salary by Mr. Oyster. On cross-examination, Mr. Oyster testified that he had completely recovered, and that he had lost nothing by way of wages because of his injuries. He did not own the automobile in which he was riding, and of course no claim was asserted by way of damages to the car. By way of further cross-examination, respondents' counsel asked Mr. Oyster the amount of his salary. This question was objected to, on the ground that, as Mr. Oyster was making no claim for loss of salary, the question was improper. The objection was overruled, and Mr. Oyster answered that at the time of the accident he was receiving $3,000 a year. The court sustained an objection to a later question as to Mr. Oyster's compensation at the time of trial, but overruled an objection to a later question as to whether or not the witness had lost any salary because of the accident, the witness replying that he had lost none.

It appeared beyond question, from the pleadings and the testimony of the witness that Mr. Oyster was asserting no claim whatsoever for loss of salary, and that appellants were seeking damages only as compensation for personal injuries.

The amount of compensation which Mr. Oyster was receiving from his employer was immaterial, and the trial court erred in overruling appellants' objections to questions concerning that matter. Whether Mr. Oyster's compensation was small, average or large, was not germane to the issues which the jury were called upon to determine. It was no more relevant than the amount of property he owned. His right to recover damages did not depend upon his poverty or his wealth. Wright v. Broadway Department Store, 199 Cal. 562, 250 P. 572; Andonique v. Carmen, 162 Ky. 154, 172 S.W. 112; Birmingham Ry., etc., Co. v. Friedman, 187 Ala. 562, 65 So. 939; Herstein v. Kemker, 19 Tenn.App. 681, 94 S.W.2d 76; 1 Jones on Evidence, 4th Ed., 275, § 161.

Respondents called as a witness one Ed Mayes, who, after testifying concerning certain matters upon which he was competent to testify as an expert, was permitted, over appellants' objection, to give his opinion as to the approximate speed of appellants' car at the moment of impact, based upon a hypothetical question in which the damage to appellants' car was described, and the result of the impact upon the persons riding in appellants' car was indicated, the question being aided by examination of photographs of appellants' car taken after the accident. The witness stated that he had never had any personal experience with automobile wrecks; that for twenty years he had been a dealer in automobiles, for the past seven years having been selling Dodge and Plymouth cars; that in a general way he was familiar with the body structure, brakes and general mechanism of the 1936 Plymouth sedans; that he had demonstrated these cars, and had tested them in various ways. The witness further testified that he was familiar with the scene of the accident. Based upon his examination of the photographs, his familiarity with the scene of the accident, and assuming the facts stated in the hypothetical question propounded to him by respondents' counsel, the witness gave his opinion as to the speed of appellants' car at the time of the impact. On cross-examination, the witness testified that in making his estimate he compared the appearance of appellants' car after the accident, as shown by photographs, with other wrecked cars which he had seen, and that, concerning these other wrecked cars, his only information concerning the accidents in which they were damaged was obtained from persons who had told him about the accidents. The witness testified that no car which he had been driving had ever been wrecked, and that all of his knowledge concerning such matters was as above described.

In connection with expert testimony, several elements must be considered. One of these elements is whether or not the matter is a proper subject for expert testimony; another whether or not the witness offered is qualified to testify as an expert. In connection with the first proposition, it is the general rule that a proper matter for expert testimony is one, the discussion of which calls for some special skill or knowledge beyond the understanding of the ordinary person. Cook v. Stimson Mill Co., 41 Wash. 314, 83 P. 419; Hill v. Great Northern Life Ins. Co., 186 Wash. 167 57 P.2d 405; Thomas v. Inland Motor Freight, 190...