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

• Decision Date: 02 February 1912
• Citation: 67 Wash. 96,120 P. 889
• Court: Washington Supreme Court
• Parties: TAYLOR v. SPOKANE, P. & S. RY. CO.

120 P. 889

67 Wash. 96

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

Supreme Court of Washington

February 2, 1912

Department 2. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by Vinnie Taylor against the Spokane, Portland & Seattle Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Cannon Ferris, Swan & Lally, for appellant.

Robertson & Miller, for respondent.

CROW J.

On April 9, 1910, two of appellant's trains, traveling in opposite directions, collided in the city of Spokane. The respondent, a passenger, was riding in a day coach, which was not derailed. Other coaches left the track; some passengers were killed, and others were injured. Respondent claims that she was thrown against the arm of a car seat, thence to the floor; that temporarily she became semiunconscious; that while she lay upon the car floor wounded passengers from another car passed by; that they were mangled, bleeding, and crying with pain; that she was assisted to a street car, upon which she rode to a hotel; that on the street car was another passenger injured in the wreck, who was covered with blood and repeatedly complained that his partner had been killed; that the cries and mangled appearance of the injured and wounded shocked and distressed her; that she sustained an injury to her back, has since suffered intense pain, can only walk slowly, cannot climb stairs, cannot work, has headaches, and at frequent intervals is affilicted with severe illness. The evidence went to the issue whether she had suffered traumatic neurasthenia, and, if so, whether her condition was caused by the accident, or resulted from a severe illness and surgical operation which she had sustained a year or two previously, and from which she and the surgeon who performed the operation testified she had fully recovered. The evidence was conflicting; but the jury, under the instructions of the trial court, found in respondent's favor, and returned a verdict for $7,000 damages. Upon the hearing of a motion for a new trial, this sum was conditionally reduced to $5,000 by the trial judge, for which judgment was entered in respondent's favor.

The appellant did not dispute its negligence; nor did it deny its liability for any injuries which may have resulted to respondent. The jury found the respondent's neurasthenic condition had been caused by the injury and shock resulting from the collision. The controlling issue was the amount of damages to be awarded. Appellant contends that the trial judge erred in admitting evidence of the presence of injured passengers on the street car, and also erred in admitting a photograph of the wrecked trains; that counsel for respondent was guilty of prejudicial misconduct; and that the damages are still excessive. We fail to see the materiality of the photograph, or that its admission was prejudicial. The presence and conduct of the injured passenger on the street car was only a repetition or continuation of what the respondent had seen and experienced to even a greater degree before leaving appellant's passenger coach, in which she had been injured. The accident occurred in a remote section of the city. The passengers could not reach their destinations on the wrecked train. Some of them, including respondent, rode on the street car. The relation or condition in which she was thus placed was a direct or proximate result of the accident, and very properly might be regarded a part of the res gestae. There was evidence of physicians tending to show that the sight of mangled, bleeding, and suffering passengers might cause a shock which would contribute to respondent's present condition. She suffered such a shock and experience in a greater degree before leaving the train than after, and we fail to understand how admission of the evidence of which appellant complains was prejudicial.

Counsel for respondent in his closing argument to the jury said: 'Now he says, gentlemen of the jury, that 'The question of negligence in this collision is eliminated from this case. Why this talk by counsel on the other side of negligence, gross negligence, here? Why, there is no evidence of gross negligence. We might have done this, and we might have done the other thing, in this case.' And he contends that the question of negligence is eliminated. Now the court says the question is eliminated, not because negligence is taken out of the case, but because of the admission of the defendant; and if there was no other testimony in the case but the admission, there would be no question but that the plaintiff would be entitled to recover. Negligence has not been eliminated from this case, because this admission of the negligence in the collision is the very reason why the case goes to you practically solely upon the amount that will be allowed. I say that there is evidence of the grossest negligence in this case. Here are these two trains upon the same track, loaded with human freight! Here they are, rushing into the night with a speed of--the speed that the evidence states! Here they are, crashing into each other, with the groaning and screaming of human souls going down to their death! I say is evidence of the grossest negligence in this case; and if there is any attempt to eliminate it it is because they do not desire that an impression should be made upon this jury, before this jury, that this was the grossest character of negligence; and the admission of the fact that it is negligence is in connection with the evidence of the case that it was gross negligence, and that it is for your consideration, and, in fact, there can be no question of it. Can one railroad train jump over another on a track? Can one passenger train, coming at full speed, pass another on the same track? Does not the railroad company know that? Is there a man so dull who would say that that is not evidence of negligence; and counsel here, before he examined this jury, said that the negligence of the collision would not be denied by this corporation.' Thereupon the following colloquy occurred: 'Mr. Cannon (attorney for appellant): Just one minute. Mr. Robertson (attorney for respondent): He is not---- Mr. Cannon: Counsel---- Mr. Robertson: ----permitted now---- Mr. Cannon: If the court please. I want to take an exception to the discussion of the question of whether there was gross negligence, or whether there was negligence in this case; the question of negligence is out of it, and this can be for no other purpose than to prejudice the jury in this case. It is not a subject for discussion, and I take an exception to the remarks of counsel on that question. Mr. Robertson: The question of the accident and the character of the collision---- Mr. Cannon: Oh, no; the discussion of whether or not this was gross negligence--this tirade on gross negligence. The Court: I think the question of negligence, Mr. Robertson, has been eliminated, as I instructed the jury. Mr. Robertson: Then this instruction, if your honor please, is to be construed that it is...