Pylate v. Hadman

• Decision Date: 18 March 1929
• Docket Number: 21574.
• Citation: 151 Wash. 245,275 P. 559
• Court: Washington Supreme Court
• Parties: PYLATE et ux. v. HADMAN.

275 P. 559

151 Wash. 245

PYLATE et ux. v. HADMAN.

No. 21574.

Supreme Court of Washington, En Banc.

March 18, 1929

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

Action by J. W. Pylate and wife against Alta D. Hadman, doing business as the Kapowsin Auto Stage Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Poe, Falknor, Falknor & Emory, of Seattle, for appellant.

Lloyd &amp Croteau, of Tacoma, for respondents.

MILLARD J.

This action was brought to recover for personal injuries sustained in the collision of plaintiff's automobile with the defendant's passenger bus. The case was tried to the court and a jury, and resulted in a verdict against the defendant. Motion for a new trial was overruled, and from a judgment on the verdict the defendant appealed.

On August 8, 1925, about 5:30 o'clock in the afternoon, the respondents (husband and wife) and their minor son were driving in a Ford bug owned by the respondent marital community, and at the time being operated by the husband along the Pacific Highway (also known as the 'Mountain Road'), in a southerly direction, a short distance east of Spanaway, and about 8 miles south of Tacoma, in Pierce county. Respondents testified that, while their car was traveling about 25 miles an hour on the extreme right edge of the pavement, a passenger bus or auto stage owned by the defendant was proceeding in the same direction at approximately 35 miles an hour, and that without giving any signal indicative of such intention, appellant attempted to pass respondents, crowding the Ford bug to the right and off the pavement. The appellant, to avoid collision with a north-bound automobile, which was from 50 feet to 100 yards south of the cars of respondents and appellant, dropped back, swinging towards respondents' car. The right-hand bumper of the bus locked in front of the gas tank near the left rear wheel of respondents' car, which was thrown across the pavement in front of the bus and completely wrecked. Mrs. Pylate was rendered unconscious and her left arm was broken. Her son and husband escaped with minor injuries. In one particular the evidence is not in conflict: that is, that at the point where the accident occurred, and about one mile to the south thereof, a clear view is afforded, as the highway is straight and free from curves.

The testimony of appellant's bus driver and of seven other witnesses, who were passengers on the bus, was substantially that the bus twice failed in endeavoring to pass the Ford bug, but that the third time it was successful. The respondents then drove their car around to the right of the bus, traveling on the dirt and gravel portion of the highway, swerved to the left, and drove on the pavement in front of the bus, thus causing the collision. All of appellant's witnesses testified that the bus driver sounded his horn each time he essayed to pass the respondents' car, and that they did not at any time observe an automobile approaching from the south.

Appellant first complains that the court erred in admitting evidence in rebuttal which should have been introduced in chief. After the close of the evidence for the defense, the court permitted, over the objection of appellant, Cecil and William Weber to testify in rebuttal. Summarized, their testimony was that, when the accident occurred, they were in front of their garage west of the highway at a point from 100 to 1,500 feet distant from the scene of the collision. The bus attempted to pass the bug, crowding the latter off the pavement to the right, when a northbound Ford touring car was 150 to 200 feet south of the cars of respondents and appellant. In withdrawing or falling back, the bus became attached to some part of the bug and wrecked it.

Appellant directs attention to our statute defining the manner of conducting trials:

'(2) The plaintiff, or the party upon whom rests the burden of proof in the whole action, must first produce his evidence; the adverse party will then produce his evidence.

'(3) The parties then will be confined to rebutting evidence, unless the court shall consider that justice requires that evidence in the original case may then be offered.' Rem. Comp. Stat. § 339.

This statute doubtless vests in the trial court a large discretion in the matter of admitting evidence out of order.

Appellant was permitted to introduce testimony in reply to the testimony of the Weber brothers. Had appellant claimed surprise arising from unexpected testimony, and timely moved for a continuance in order to produce evidence to meet the emergency, a different question might have been presented. The testimony of the Webers was merely cumulative, and we cannot hold that it was prejudicial. Both respondents testified in chief to the same facts, and eight witnesses for appellant positively contradicted that testimony.

In Cogswell v. West St. Elec. Ry. Co., 5 Wash. 46, 31 P. 411, we held that the admission or exclusion of evidence not strictly in rebuttal is a matter resting in the discretion of the trial court, the exercise of which discretion is not subject to review, except in cases of gross abuse, and that the production of merely cumulative evidence can certainly not be held to be an abuse of this discretion.

A case will not be reversed for allowing evidence in rebuttal that might have been introduced in chief, except on the plainest abuse of discretion, and where appellant is not permitted to introduce evidence in reply thereto. Bellingham v. Linck, 53 Wash. 208, 101 P. 843. There was no abuse of discretion in admitting the testimony of the Webers.

Appellant next assigns as error the denial of the motion for a new trial. One of the grounds upon which the motion for a new trial was based is that of newly discovered evidence. The only purpose the new evidence could serve would be to tend to prove the improbability or impossibility of the...