Webber v. Park Auto Transp. Co.

• Decision Date: 31 March 1926
• Docket Number: 19676.
• Citation: 244 P. 718,138 Wash. 325
• Parties: WEBBER et ux. v. PARK AUTO TRANSP. CO. et al.
• Court: Washington Supreme Court

244 P. 718

138 Wash. 325

WEBBER et ux. v. PARK AUTO TRANSP. CO. et al.

No. 19676.

Supreme Court of Washington

March 31, 1926

Department 1.

Appeal from Superior Court, King County; Hall, Judge.

Action by John Webber and wife against the Park Auto Transportation Company and another. Judgment for plaintiffs, and defendants appeal. Reversed, and new trial awarded.

Poe, Falknor, Falknor & Emory, of Seattle, for appellants.

Clem J Whittemore, J. Speed Smith, and Henry Elliott, Jr., all of Seattle, for respondents.

FULLERTON J.

This is an action sounding in damages, brought by the respondents Webber, against the appellants Park Auto Transportation Company and U.S. Inter-Insurance Association for injuries to their persons and to their property. The action was tried by the lower court sitting with a jury, and resulted in a verdict and judgment in favor of the respondents.

The appellant Park Auto Transportation Company owns and operates an automobile stage line between the city of Everett and the city of Seattle, operating its stages over a public road commonly known as the Pacific Highway. The general course of the highway named is north and south. At a place on the highway known as Lake Forest Park a public road leaves the highway, extending in a westerly direction. On December 25, 1923, a stage of the appellant was driven southerly on the Pacific Highway, and reached the road leading westerly at about 9:30 o'clock in the evening. The respondents, driving their own automobile northerly on the highway, reached the same place shortly before the stage reached it, and turned westerly in front of the approaching stage, intending to enter the road. At the speed the stage was approaching they did not have sufficient time to get into the clear, and a collision, with the consequent injuries which give rise to the present action, was the result.

The appellants first contend that the evidence is insufficient to sustain the verdict the jury returned, and to the argument of the contention a large part of their brief is devoted. But we think we need not follow the argument at length. As we read the record, there was testimony on the part of the respondents, to which the jury were entitled to give credence, tending to show that the respondents reached the intersecting road sufficiently in advance of the stage to have turned into the road and leave a clear passage way for the stage, had the driver of the stage been driving it at the time within the speed limit permitted by the statute. It is true that the statutory speed limit was at that place 30 miles per hour, and true that there was evidence tending to show that the rules of the transportation company required its stages to be driven at this place at a speed not in excess of 25 miles per hour, and evidence that the stage was driven within the speed limit fixed by the company. It is true, also, that the record discloses circumstances which tend somewhat strongly to show that the respondents were guilty of contributory negligence. But the evidence was at best conflicting, making the question one for the jury to determine. This court cannot say that the verdict of the jury was without substantial evidence in its support and it is only when it so appears that the appellate court is permitted to set aside the verdict and direct a judgment for the other side.

Of the errors assigned which are thought to require a new trial, the first appears in the examination of the prospective jurors on their voir dire. It is claimed that the respondents were allowed to inquire into matters touching the qualifications of the several jurors to sit on the trial of the cause, not pertinent to such an inquiry, but which had a tendency to prejudice the jurors against the appellants. But, while the contentions in this regard would merit discussion, we do not find that they are before us. The record, as it is presented here, does not disclose that objection was made in the court below to the examinations. They were not of such gross impropriety as to require the trial court to interfere on its own initiative, and, without invoking its ruling, the appellants cannot complain in this court.

On the examination of the driver of the stage as a witness for the appellants, the record discloses the following:

'Q. As Mr. Webber approached you, did you see him put out his hand? A. Hold out his hand to indicate he was going to turn?

'Q. Yes. A. No, sir; I could not see back of his headlights; nobody can.

'Mr. Smith: I ask that all his answer be stricken, except that he could not see it, or did not see it, rather.

'The Court: The last two statements may be stricken, and the jury will disregard them.

'Mr. Falknor: I except to that being stricken, because that is testimony that is competent and material.

'Mr. Smith: I submit it is argumentative.

'The Court: It is argumentative. The witness is confined to what he saw or heard.

'Mr. Falknor: All right, you may cross-examine.

'Mr. Smith: No questions.'

The appellants complain, we think justly, of the ruling of the court. A witness is ordinarily permitted to explain his answers where the question calls for an answer either 'Yes' or 'No,' and in this instance explanation was peculiarly pertinent. There are conditions under which a driver of an automobile on a highway can see the signals given by a driver of an approaching automobile but there are others in which he cann...