Whiting v. City of Seattle

• Citation: 258 P. 824,144 Wash. 668
• Decision Date: 19 August 1927
• Docket Number: 20644.
• Parties: WHITING v. CITY OF SEATTLE.
• Court: Washington Supreme Court

258 P. 824

144 Wash. 668

WHITING v. CITY OF SEATTLE.

No. 20644.

Supreme Court of Washington

August 19, 1927

Department 2.

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

Action for damages by Edwin P. Whiting, executor of the estate of Sarah F. Whiting, deceased, against the city of Seattle. Judgment for plaintiff, and defendant appeals. Affirmed.

Thomas J. L. Kennedy, Arthur Schramm, Jr., and Thos. N. Swale, all of Seattle, for appellant.

R. J Meakim and E. P. Whiting, both of Seattle, for respondent.

HOLCOMB, J.

On January 13, 1926, appellant was operating a street car system, with a cable line on James street operating in an easterly and westerly direction, intersecting a double-track electric line running north and south on Broadway. At the northeast corner of Broadway and James, the city maintains a building, used as a power station and rest room, with a level loading space for passengers in front of the building and immediately north of the James street tracks. The curb is cut away for about 100 feet north of the cable line on the east side of Broadway, thus providing a loading place for northbound cars. At the time of the accident involved here an electric car, in charge of a motorman only, was standing at the usual stopping place above described, directly north of the James street cable line, taking on passengers at the forward end, with the right front gate open. Deceased, a woman 76 years old, had just alighted from a James street cable car, had a transfer, and was waiting for the south-bound Broadway car at the usual loading place on the west side of the street. Another elderly lady, Mrs. Sackett a stranger in the city and unfamiliar with the points of transfer on the car lines, had a transfer for and was awaiting a north-bound car. She was standing on the west side of the street, not knowing that the north-bound cars loaded only on the east side of Broadway. Mrs. Sackett requested the assistance of deceased in locating and boarding her proper car. She did not know that the car then standing on the east side of Broadway, loading passengers on its right front platform, was the car for which she held a transfer. Deceased, attempting to aid Mrs. Sackett to find and board her car, crossed the street easterly, Mrs. Sackett following and approached the standing car. The gate was open and passengers were boarding it, and deceased undertook to pass in front of the car. She was a little in advance of Mrs. Sackett as she started to pass in front of the car, and just as she stepped over the west rail the motorman started the car, without looking forward, without any kind of a warning, and while looking at and operating the gate of the platform to his right. Deceased was struck and thrown to the pavement. The motorman stopped his car within a very few feet and before it ran over deceased. He picked her up, spoke to her, obtained her address, and asked a young man in an automobile, who, attracted by the accident, drove up just then to take deceased to her home. To this the young man assented, and took her in his automobile to her home. He reached her home within 15 or 20 minutes after the accident. Deceased suffered an intracapsular fracture of the head of the left femur, which resulted in her death on February 7, 1926. Prior to her death, on February 1, she filed her claim against appellant in the sum of $25,000 for personal injuries, pain, and suffering, and $271.50 for hospital, nurses' and physicians' services. After her death, on February 11, 1926, respondent, as executor of her estate, filed another claim. In his claim he asked $404 for hospital, nurses' and physicians' services, $350 for funeral expenses, $5,000 for pecuniary loss, and $25,000 for the use and benefit of Edwin P. Whiting and Roscoe Everett Whiting, the two sons of deceased, as damages for the physician injuries, mental and physical suffering sustained and suffered by deceased.

The trial judge, sitting as the sole trier of the facts, found for respondent and gave judgment in the sum of $425 for medical attention and hospital bills, $350 for funeral expenses, and $4,000 for pain and suffering, but denied recovery for wrongful death, upon the ground that there was no proof of pecuniary loss.

On appeal, much of the argument of appellant revolves about the question of improper joinder of causes of action and insufficient facts alleged to constitute a cause of action.

It is argued that the complaint states three causes of action: First. For the injury, pain, suffering, and medical expenses incurred by deceased prior to her death, for which she could have recovered had she lived. Second. For the wrongful death for the benefit of the two sons for their alleged pecuniary loss. Third. For funeral expenses.

It is contended that the first cause of action is based solely on Rem. Comp. Stat. § 194; the second on Rem. Comp. Stat. §§ 183 and 180-1; and that the third is a common-law right of action involving damage to the estate which cannot be claimed under either section 194 or section 183.

The second cause of action, that for recovery for wrongful death, was eliminated by the court's finding that there was no proof in support thereof.

Appellant's contention is that two separate actions should have been brought for the injuries sustained by the decedent; one by the executor for wrongful death and for funeral expenses, under sections 183 and 183-1, and another by the children in their individual capacities for hospital expenses, doctor bills, and pain and suffering, under section 194; and that the executor cannot in his representative capacity recover for pain and suffering, under section 194.

We have held, in Swanson v. Pacific Shipping Co., 60 Wash. 87, 110 P. 795, a case not cited by either party, that under section 194, where an action was commenced by the injured party himself for damages for negligence, and afterwards the original plaintiff became insane, upon which his wife and children were substituted as parties plaintiff for their own benefit, and after which the original plaintiff died, upon which a second supplemental complaint was filed and a substitution of the widow and minor children was permitted as parties plaintiff in the action and the cause permitted to be continued and prosecuted in their names, to recover such damages as he could have recovered had the cause been tried prior to his death, that section 194 was intended to give the wife and children the right of action to recover the damages which the husband and father would have recovered in his action, had he survived.

These various sections, 183, 183-1, and 194, of the statutes, as they have been successively amended by various Legislatures have been before this court for construction a number of times. See Swanson v. Pacific Shipping Co., supra; Kanton v. Kelly, 65 Wash. 614, 118 P. 890, 121 P. 833; Thompson v. Seattle, Renton & S. R. Co., 71 Wash. 436, 128 P. 1070; Mesher v. Osborne, 75 Wash. 439, 134 P. 1092, 48 L. R. A. (N. S.) 917, Ann. Cas. 1915G, 140; Brodie v. Washington Water Power Co., 92 Wash. 574, 159 P. 791; Whittlesey v. City of Seattle, 94 Wash. 645, 163 P. 193, L. R. A. 1917D, 1084; Machek v. City of Seattle, 118 Wash. 42, 203...