Stone v. City of Seattle , 33 Wash. 644 ( 1903 )

Dunbar, J.

This action was instituted hy the respondents Sewall P. Stone and Mary E. Stone, his wife, for damages for personal injuries received hy the wife on the 4th day of October, 1900, hy reason of her stepping into a hole in one of the streets of the city of Seattle. At the junction of Kilbourne and Bowman avenues, the outer plant of the cross walk was some ten inches short, leaving an opening which was at that time some four oT five indies deep, and which was of sufficient size for a person to step into. The accident occurred at night. 27ear this opening stood a large electric light pole, from which an electric arc light was suspended in such a manner as to cast the shadow of the pole over the opening. The case Was tried to a jury, a verdict of $9,000 was returned, and judgment entered for that amount, from which judgment this appeal is taken.

This is the second time that this case appears in this court. At the first trial, nonsuit was granted on the ground that there was a total failure of proof as to any negligence on the part of the city. Thereafter respondents moved for a new trial. That motion was also granted and a new trial ordered, and from the order granting a new trial, the city appealed. This court sustained the trial court, and the cause was remanded for trial (30 Wash. 65, 70 Pac. 249), which was had, and resulted in the judgment aforesaid.

It is alleged that the court erred in sustaining respondents’ objection to competent evidence offered by appellant. The offer by the city attorney was as follows:

“We offer to prove that all the sidewalks in the city— in this part of the city especially—built along about that time, such as a sidewalk in this case, were built upon the same plan of construction as this sidewalk was built, and that this sidewalk and this opening is no different than hundreds of other sidewalks and openings in the city built upon that plan of construction.”

This testimony was objected to, and the objection we think was properly sustained. In addition to the fact that the city could not avoid liability by proving that it had systematically been guilty of negligence in the construction of its walks and streets, this question, it seems to us, was determined upon a former trial of this case, where it was decided that the city could not escape liability for injury from a defective sidewalk because the defect was part of the original plan of construction.

The nest offer Was to prove by a witness that he had. visited many of the large cities of the United States, and was familiar with the plans and construction of sidewalks such as the sidewalk in question, and that in those places they were constructed like the sidewalk in question. We think that objection to this testimony was also properly sustained. The only real question at issue here, on this branch of the case, was whether the city was guilty of maintaining the sidewalk in a negligent manner, and its liability could in no wise be affected by the fact that other cities might, or might not, be guilty of the same negligence.

The appellant also offered to prove that it was necessary to have this opening in the sidew'alk for the purpose of disposing of surface water, and that the opening was for the purpose of cleaning out the drain and keeping it open. We think objection to this testimony was also properly sustained. This court has uniformly announced in its decisions that the test of the liability of a city is whether or not it constructs and maintains its walks in a reasonably safe manner. This is a duty it owes to pedestrians, who have a right to travel on the walks. Besides, it is a matter of such common and universal knowledge that surface water could be disposed of by grates and other small openings which would be harmless, that it was not proper to admit testimony which would simply tend to confuse the minds of the jurors, and lead them from the pertinent questions in issue.

It is also insisted that the court erred in sustaining objection to questions asked Dr. Faulk on cross-examination. Dr. Faulk had testified as a medical expert on behalf of respondents, and the following colloquy occurred:

“Q. I will ask you now if you are acquainted with the Work on medicine known as the ‘Practice of Medicine,’ by Osier. A. Yes sir. Q. Do you consider it one of the standard works? A. Yes sir. Q. FTow, if Osier lays down the proposition that ‘A majority of patients with traumatic neurosis recover in railway cases. So long as litigation is pending and the patient is in the hands of lawyers the symptoms usually persist. Settlement is often the starting point of a speedy and perfect recovery with a full return to health, after presenting the most aggravating symptoms with complete disability of three to five years’ duration.’ I will ask you if that is a correct announeement of medical science relating to this disease that you have described.”

It would seem plain that the only effect that a statement of this kind could have on a jury would he to prejudice it against claims of this character. Even if it were pertinent, it is hut hearsay testimony, and on a subject entirely disconnected with the matters at issue, and does not pertain in any way to the medical profession or science of medicine, hut is simply a reflection upon the honesty of individuals generally who meet with accidents caused by railroads.

We are unable to discover any prejudicial error in the instructions of the court, or in its refusal to instruct. The instructions given fairly stated the law and embraced all the law which should have been given in the cause. Hoi» do we think that the alleged action of the court in his demeanor towards the city attorney was of such a serious nature as would warrant a reversal of this cause.

We are satisfied, however, from an examination of the whole record, that the jury was not warranted in decreeing this respondent damages in the sum of $9,000. She was a woman fifty-five years old at the time of the accident, engaged in nursing and housekeeping. "What was said by this court in Vowell v. Issaquah Coal Co., 31 Wash. 103, 11 Pac. 725, might,,be substantially repeated here; viz., that the earning capacity of men and women decreases after middle life, and usually decreases very rapidly. Here, as there, this woman was at the time of life when her physical vigor was on the wane. Ho other means of obtaining a livelihood or making money was attributed to her than as a nurse and housekeeper; and considering all the testimony in the case that seems to us to bear the impress of reason, we think $6,000 would have been a liberal allowance for the jury to have awarded.

Instead, however, of reversing the cause for this error, and imposing the costs of a new trial upon both parties, the judgment of the court will be that, if the respondents, within twenty days from the filing of this opinion, remit from the judgment obtained the amount of $3,000, the judgment as so amended will be affirmed. Othei'wise the judgment will be reversed, and a new trial granted.

Dullebton, O. J., and Hadley, Mount, and Andebs, <TJ., concur.