Sears v. Seattle Consol. St. Ry. Co.
| Decision Date | 17 April 1893 |
| Docket Number | 643 |
| Citation | 33 P. 389,6 Wash. 227 |
| Parties | SEARS ET AL. v. SEATTLE CONSOLIDATED ST. RY. CO. [1] |
| Court | Washington Supreme Court |
Appeal from superior court, King county; Richard Osborn, Judge.
Action by Annie Sears and her husband, Frank Sears, against the Seattle Consolidated Street-Railway Company for personal injuries received by Annie Sears while a passenger on one of defendant's cars. There was a verdict and judgment for plaintiffs for $15,000, and defendant appeals. Affirmed.
Wiley, Scott & Bostwick, for appellant.
Thompson Edsen & Humphries, for respondents.
The appellant owns and operates lines of street railways in the city of Seattle, one of which has its terminus at Fremont, a suburban village some distance from the main portion of the city, and situated at the north end of Lake Union. It is known as the "Fremont Line," and connects with another line of street railway which extends to Green Lake in the northern portion of the city. On September 16, 1891 the respondent Annie Sears entered upon one of the cars of the appellant to go to Green Lake. The motive power used upon the said railway is electricity, and the car upon which the respondent became a passenger at the time above mentioned was what is called an "open car." Before reaching Fremont, and while the car upon which Mrs. Sears was riding was going down a grade on Roland street, it collided with a wagon which was upon appellant's track, and going in the same direction, ran off the track, and turned to the left, and ran across the street to the verge of an embankment, which was 16 feet from the left, or west, rail of the railway track. The respondent was seated on the right-hand side of the car, and when she saw that the car was leaving the track she became frightened, and rose up from her seat, and took hold of the post supporting the roof of the car with her right hand, to steady herself, and endeavored to jump from the car. In so doing she struck upon her feet, but was thrown down upon her back close to the left-hand side of the track, and thereby received a serious injury. Nearly all of the other passengers leaped from the car at about the same time, but neither they nor the one or two persons who remained in the car were in any wise injured. The respondents, who are husband and wife, instituted this action to recover damages for the injury so received by said Annie Sears, and alleged in their complaint that said injury was caused by the negligence of the servants and employes of appellant in the management of its car. The defendant, in its answer, denied that the alleged injury was caused by any negligence or carelessness on its part, and affirmatively alleged that if the said Annie Sears sustained the injury mentioned in the complaint it was caused wholly by her own carelessness and negligence. There was a verdict and judgment for plaintiffs, and the defendant brings the case here for review.
The first error assigned by the appellant is that the trial court, over the objection of appellant, wrongfully permitted a witness for plaintiffs, Mr. Eck, to answer the question, "What was there, if anything, to prevent him [the motorman] stopping the car and applying the brakes a long time before he did?" The witness answered, "He was running at too high speed to stop it in that distance." The learned counsel for the appellant insists that this was, in effect, permitting the witness to give his opinion to the jury upon the question whether or not the defendant was negligent in the management of its car. The witness had already testified that the car was running at the rate of about 12 miles an hour; that the wagon on the track was in plain view for a distance of 400 feet; that the motorman commenced ringing the bell as a warning of his approach at about that distance from the wagon, and rang it continuously thereafter; that the man in the wagon made no attempt to get off the track until the car was pretty close to him; and that when the motorman found that the wagon was not going to get out of the way in time he made every effort possible to stop the car, but that he was then within a hundred feet or more of the wagon. Under these circumstances we think it was not error to overrule the objection to the question, even upon the theory of the appellant that the testimony given in response thereto was the expression of the opinion of the witness, and not the statement of a fact within his own knowledge. It is a general rule of evidence that witnesses may not give opinions as to matters of fact which the court or jury are ultimately to determine. But this rule is not without exception. And "the exception is not confined to the evidence of experts who may give opinions on questions requiring special skill, knowledge, or learning, but includes the evidence of common observers, who may state the results of their observations in regard to ordinary appearances and conditions of things which cannot be produced to a jury exactly as they were observed by the witness at the time." Nonexpert witnesses, who have had opportunities to observe, and who have actually observed, the demeanor, actions, and appearance of a particular individual, are competent to express an opinion upon the question whether such person was sane or insane; and every person of ordinary understanding and intelligence is competent to give an opinion as to the identity of persons or things, as to whether another appeared to be sick or suffering from pain, and as to the direction from which a blow was delivered which produced a wound upon the person of another. People v. Hopt, (Utah,) 9 P. Rep. 407. Of course, the weight of such testimony depends upon the thoroughness of the observation of the witness; and whether he has sufficiently observed and considered the particular fact or matter under consideration to enable him to form an opinion in respect thereto is a question which, if raised, is to be determined by the court by the application of the same rule which governs in ascertaining the qualifications of experts. In People v. Hopt, supra, this question is very elaborately and satisfactorily discussed, and many cases cited showing particular instances in which nonexperts have been allowed to express opinions. And the supreme court of Utah, in delivering the opinion in that case, said: "The admissibility of the evidence rests upon three necessary conditions: First, that the witness detail to the jury, so far as he is able, the facts and circumstances upon which his opinion is based, in order that the jury may have some basis by which to judge of the value of the opinion; second, that the subject-matter to which the testimony relates cannot be reproduced and described to the jury precisely as it appeared to the witness at the time; and, third, that the facts upon which the witness is called upon to express his opinion are such as men in general are capable of comprehending and understanding." We think the rule there laid down is clearly deducible from the authorities, and that, tested by it, there was no error in the ruling of the court upon the point in question. The witness in this case expressed his opinion as a conclusion of fact, based upon the observation made by him at the time of the accident as to the rate of speed of the car, and the exertions made by the motorman to stop it; and it seems to us that the testimony is clearly embraced within the rule above stated.
On the trial of this cause it was shown, upon the cross-examination of the motorman in charge of the car at the time in question that he was discharged by the railway company about three weeks after the casualty occurred, but no testimony was adduced showing why he was so discharged. Counsel for the respondents, in alluding to the fact, in his address to the jury remarked, among other things: Counsel for the appellant objected to the remarks so made, on the ground that there was no evidence that the man was discharged on account of this accident. The counsel for the respondents then admitted that there was no such testimony, but insisted that his argument was proper upon the evidence before the jury. The judge also stated that there was no evidence that the motorman was discharged on account of the accident, but further remarked that The learned counsel for the appellant excepted to the ruling of the court, and now contends that the same was erroneous and prejudicial to appellant. But we think the appellant is not entitled to a judgment of reversal on that ground. It is the duty of...
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