Washington v. City of Seattle

• Citation: 16 P.2d 597,170 Wash. 371
• Decision Date: 30 November 1932
• Docket Number: 24045.
• Parties: WASHINGTON v. CITY OF SEATTLE et al.
• Court: United States State Supreme Court of Washington

16 P.2d 597

170 Wash. 371

WASHINGTON v. CITY OF SEATTLE et al.

No. 24045.

Supreme Court of Washington

November 30, 1932

Department 2.

Appeal from Superior Court, King County; Kazis Kay, Judge.

Action by Harriet E. Washington against the City of Seattle and another. Judgment for the defendants, and the plaintiff appeals.

Reversed.

Lund &amp Lund, of Seattle, for appellant.

A. C Van Soelen and E. I. Jones, both of Seattle, for respondents.

STEINERT J.

This action is the result of a collision between an automobile bus and a truck upon the streets of the city of Seattle. Plaintiff was a passenger for hire upon the bus. A trial Before the court, sitting with a jury, resulted in a verdict and judgment for the defendants. Plaintiff has appealed.

On November 14, 1930, one of the city's busses, operated in connection with the city's railway system, and on which appellant was then a passenger, was traveling west along East 65th street in the city of Seattle. At the same time a truck owned and operated by the respondent Claseman, was traveling south along 12th Avenue N.E. The two streets intersect at right angles. Under a municipal ordinance of the city, a stop sign had been erected on 12th Avenue N. E., 100 feet north of East 65th street, requiring traffic on 12th Avenue N.E. to come to a stop Before entering the intersection. Another ordinance made it unlawful to drive a vehicle across any street intersection within the city limits at a rate of speed faster than 15 miles per hour. The truck entered the intersection without having stopped at the stop sign, and the two vehicles collided in the southwest quadrant of the intersection, the truck striking the bus on its right side near the front. The appellant, who was holding a child in her lap at the time, was thrown forward against the seat in front of her and sustained injuries for which this action was brought. There was evidence to the effect that the bus entered the intersection at a rate of speed of from 30 to 35 miles per hour; also, that the northeast corner of the intersection was an obstructed one as defined by our vehicle operation act. Additional facts will be suggested in the course of our opinion.

Appellant's first assignment of error is to the court's refusal to sustain her challenge, for cause, to one of the jurors. It appears that, after the appellant had exhausted her peremptory challenges, a lady whose husband was then an employee of the municipal railway system, was called to the jury box. When her identity became known, appellant promptly challenged her right to sit upon the jury. The court denied the challenge. Rem. Comp. Stat. § 330 provides that a challenge for implied bias may be taken for the following causes: '* * * (2) Standing in the relation of * * * master and servant * * * to the adverse party; or being * * * in the employment, for wages, of the adverse party. * * *'

The juror's husband was an employee for wages of the city's municipal railway system. Clearly, he would not have been competent to serve as a juror in the case. McMahon v. Carlisle-Pennell Lbr. Co., 135 Wash. 27, 236 P. 797. Under our statute the earnings of the husband are presumptively community property. Rem. Comp. Stat., § 6892. While the statute gives the husband management and control of the community personal property, yet, as was said in Jones v. Duke, 151 Wash. 108, 275 P. 72, 73, 'in a large number of homes, husbands give their wives a considerable portion of their earnings, and the wife, as a rule pays out this money for household expenses, and, if possible, saves some portion thereof. In other homes, the husband pays the bills and cares for the savings.'

In still other homes, it is said, the wife gets all of it. Whatever may have been the situation with respect to the present juror and her husband, the wife had a direct and immediate interest in the compensation received by her husband, and the reasoning that would imply bias on the part of the husband would, in our opinion, affect her to the same extent. The ruling of the court in denying the challenge was, therefore, prejudicial error.

The next assignment of error is upon the court's refusal to admit certain evidence. Appellant offered to prove that in February, 1932, which was fifteen months after the accident and just a week prior to the trial, appellant's daughter, who was with the appellant at the time of the accident, had ridden upon the same bus along the same course, and by prearrangement was, at the time, being followed by two men in another automobile; she offered to prove that the bus was then traveling at the same rate of speed as at the time of the accident and that, according to the speedometer of the accompanying automobile, the bus was then traveling at the rate of 35 miles per hour. Counsel rely upon Amsbary v. Grays Harbor Ry. & Light Co., 78 Wash. 379, 139 P. 46, 8 A. L. R. 1, as substantiating her contention that such evidence was admissible. In that case the experiment was made to determine how far ahead a person could be seen by the motorman of a street car. The test in that case was based upon circumstances and conditions that substantially reproduced the situation existing at the time of the accident. It was not predicated, as in the present case, upon a supervenient memory of so fluctuating and uncertain an element as the rate of speed of a bus, wholly unaided by a contemporaneous observation of its speedometer. The case Before us presents a range of variant circumstances more nearly like those in the case of Lasityr v. City of Olympia, 61 Wash. 651, 112 P. 752, where the refusal of the court to admit the evidence was upheld. Matters of this kind rest largely in the discretion of the trial court, reviewable only for abuse of sound judicial discretion. We think that the court did not abuse its discretion in its ruling in the present case.

Appellant's next assignment of error is upon the court's refusal to admit in evidence Exhibit B, a photograph of the intersection at or near the northwest corner. Its purpose was, of course, to present an ocular representation of the location. Appellant had...