Taylor v. Spokane, P. & S. Ry. Co.

• Citation: 72 Wash. 378,130 P. 506
• Court: United States State Supreme Court of Washington
• Decision Date: 08 March 1913
• Parties: TAYLOR v. SPOKANE, P. & S. RY. CO.

130 P. 506

72 Wash. 378

TAYLOR v. SPOKANE, P. & S. RY. CO.

Supreme Court of Washington, En Banc.

March 8, 1913

On Rehearing. Judgment for plaintiff reversed.

For former opinion, see 67 Wash. 96, 120 P. 889.

MOUNT J.

A rehearing was granted in this case, and it has been reargued to all the judges sitting en banc. A fair statement of the facts was made in the original opinion, which may be found in 67 Wash. 96, 120 P. 889. The facts need not be restated here.

Upon this rehearing, we have concluded that a new trial must be granted for the errors hereinafter noticed. As stated in the former majority opinion, 'appellant did not dispute its negligence; nor did it deny its liability for any injuries which may have resulted to respondent' on account of the collision of the appellant's trains. 'The controlling question was the amount of damages to be awarded.' The appellant denied that the injury which the respondent received was caused by the collision. In the former opinion the majority sitting on the first hearing said, in reference to certain photographs which were received in evidence 'We fail to see the materiality of the photograph, or that its admission was prejudicial.' We are of the opinion now that this photograph was properly admitted to show the probable force of the impact of the train, because it is a well-known fact that a collision which wil crush a car is reasonably certain to cause injury to passengers within the car. The force of the impact therefore, is a material matter to be considered in determining whether or not the passenger was actually injured upon the car. A photograph taken of the car at the time is competent to show the result of the impact, the same as oral evidence of that fact. Maynard v. O. R. & R. Co., 46 Or. 15, 78 P. 983, 68 L. R. A. 477.

We are satisfied, however, that the court erred in admitting in evidence the fact that, after the plaintiff was taken upon a street car, she saw there other passengers who were covered with blood and heard statements made by persons on the street car at that time. It was not shown that these persons were in the same car with plaintiff at the time of her injury, but it is shown that the injured man referred to in that conversation was brought out of the mail car, which was not the car in which the plaintiff was riding at the time of the collision. The statements were made some time after the accident and away from the scene of the accident, where no officer of the company was present. The respondent says 'The conductor said to him,' but by that statement she plainly meant the conductor upon the street car, as the fact was, and she did not mean the conductor of the train which was wrecked. The conversation, therefore, could not have been a part of the res gestae.

The fact that the plaintiff saw persons covered with blood upon the street car, and that the sight of mangled persons might cause a shock which would contribute to the plaintiff's condition, was wholly immaterial and improper, because 'mental distress caused by sympathy for another's suffering is not a recoverable element of damages.' 8 Am. & Eng. Ency. Law (2d Ed.) 64. 'Were the rule otherwise the passenger in a railroad wreck might claim the right to recover, not only for the distress of mind which arose from his own injuries, but also for that which he sustained from contemplating the mangled condition of his...