Toftoy v. Ocean Shores Properties, Inc.

• Decision Date: 17 August 1967
• Docket Number: No. 38789,38789
• Citation: 431 P.2d 212,71 Wn.2d 833
• Parties: Harry TOFTOY, Respondent, v. OCEAN SHORES PROPERTIES, INC., a corporation, Appellant.
• Court: Washington Supreme Court

Page 833

71 Wn.2d 833

431 P.2d 212

Harry TOFTOY, Respondent, v.OCEAN SHORES PROPERTIES, INC., a corporation, Appellant.

No. 38789.

Supreme Court of Washington, Department 1.

Aug. 17, 1967.

Parker & Parker, Lester T. Parker, Aberdeen, for appellant.

Miracle, Treadwell & Pruzan, Howard P. Pruzan, Seattle, for respondent.

SHORETT, Judge.^*

On December 28, 1963, the plaintiff-respondent sustained a broken leg while dancing on a dance floor operated by appellant corporation, Ocean Shores Properties.The cause of the injury was alleged to have been a defective and unsafe dance floor, the condition of which was known by appellant for a considerable period of time and not remedied.According to several witnesses, the floor which was of portable construction, had a tendency to pull apart leaving a crack between sections.Its condition had previously caused one serious accident, and several people had caught their heels and stumbled.The case was submitted to a jury which returned a verdict in the amount of $44,500.Judgment having been entered in accordance with the verdict, appellant appeals, assigning as error:

(1) The failure of the trial court to admit in evidence certified copies of complaints verified by the respondent relating to prior actions wherein he sued for personal injuries.

(2) The admittance in evidence of two photographs of the dance floor which were taken some time before the accident in question and which purported to show the condition of the floor at the time of a prior accident to one Joseph C. Kirchen.

(3) The allowance of the testimony of Joseph C. Kirchen concerning the details of his own accident.

(4) The failure of the court to grant judgment notwithstanding the verdict.

(5) The failure of the court to grant a new trial.

In his first assignment of error, appellant argues that two complaints alleging previous accidents and a permanent injury should have been admitted in evidence because they contradicted statements made by respondent on direct examination to the effect that he was completely recovered from the prior accidents.On cross-examination, the impeaching statements made in these complaints were presented to the jury in detail and with reiteration.The evidence excluded would merely have been cumulative and its admittance was within the discretion of the trial court.Hartman v. Port of Seattle, 63 Wash.2d 879, 389 P.2d 669(1964);Mullin v. Builders Dev. & Fin. Serv., Inc., 63 Wash.2d 202, 381 P.2d 970(1963);Braack v. Bailey, 32 Wash.2d 60, 200 P.2d 525(1948);Girardi v. Union High School Dist. No. 1, 200 Wash. 21, 93 P.2d 298(1939);Sound Timber Co. v. Danaher Lumber Co., 112 Wash. 314, 192 P. 941(1920);In re West Marginal Way, Seattle, 109 Wash. 116, 186 P. 644(1919).

The second and third assignments of error will be considered together since they both relate to a previous accident which occurred two months earlier when an entertainer, Joseph C. Kirchen, fell on the floor and broke his leg.Photographs of the floor purporting to show the same aleged defective condition were admitted and Mr. Kirchen, testifying on deposition, was allowed to state in detail the condition of the floor two months before respondent's accident.The trial court refused to strike his answers that the floor was 'in very poor shape' and 'hard to work on.'

Appellant's argument is that the photographs should have been excluded as prejudicial since they were taken long before respondent's accident and also that the trial court permitted too much detailed testimony regarding Kirchen's accident.

Evidence of a prior accident which occurred under the same or substantially similar circumstances is admissible for the purpose of showing a dangerous or defective condition and the defendant's notice of such condition.Blood v. Allied Stores Corp., 62 Wash.2d 187, 381 P.2d 742(1963);Porter v. Chicago, M. St. P. & P. R.R., 41 Wash.2d 836, 252 P.2d 306(1953);Henry v. Navy Yard Route, 94 Wash. 526, 162 P. 584(1917);Armstrong v. Yakima Hotel Co., 75 Wash. 477, 135 P. 233(1913).

Mr. Kirchen identified the photographs as fair representations of the floor on the night his accident occurred.This was only about two months before, on the same floor, and, according to substantial testimony, at the same spot the accident in question took place.The photographs were evidence of a prior similar occurrence which was not too remote in time or circumstance to be probative of the alleged continuing defect in the dance floor.Several witnesses described the floor's condition as it existed on the dates of both accidents.A photograph is sufficiently authenticated when a witness testifies that it accurately portrays the subject illustrated.Kelley v. Great Northern Ry., 59 Wash.2d 894, 371 P.2d 528(1962);State v. Tatum, 58 Wash.2d 73, 360 P.2d 754(1961).

The admission or rejection of photographs lies in the sound discretion of the trial court.Since the photographs admitted were identified as accurately representing the condition of the floor at a prior time, which was probative of the condition of the floor at the time of the accident in question, the trial court did not abuse its discretion in admitting the photographs.Brown v. General Motors Corp., 67 Wash.2d 278, 407 P.2d 461(1965);Mason v. Bon Marche Corp., 64 Wash.2d 177, 390 P.2d 997(1964);State v. Griffith, 52 Wash.2d 721, 328 P.2d 897(1958);State v. Nyland, 47 Wash.2d 240, 287 P.2d 345(1955);Kiessling v. Northwest Greyhound Lines, Inc., 38 Wash.2d 289, 229 P.2d 345(1951);Kellerher v. Porter, 29 Wash.2d 650, 189 P.2d 223(1948);Brewer v. Berner, 15 Wash.2d 644, 131 P.2d 940(1942).

The trial court's action in refusing to strike statements of Kirchen that the floor was 'in very poor shape' and 'hard to work on' was of such little consequence that a new trial would not be justified on this ground.We find no prejudice in the court's ruling.

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