Gooschin v. Ladd

I dissent.

The accident occurred January 18, 1932. The complaint, served by respondent on appellant February 1, 1932, alleged that respondent's automobile was disabled, "stuck in the ditch," and was partially on and partially off of the paved portion of the highway. There was evidence that, at that time, the shoulder of the road at the point of the occurrence of the accident was about two and one-half feet wide; that is, the complaint was not inconsistent with the situation which witnesses testified existed at that time. In the spring of 1932, the shoulder was widened to such an extent that an automobile could park thereon clear of the paved portion of the highway. Thereafter and about one month prior to the trial of this cause, the respondent amended his complaint to allege that his automobile was entirely off of the paved portion, and on the shoulder, of the highway.

The jury should not have been permitted to see the photographs showing the widened shoulder. The pictures disclosed a decidedly different condition where the accident occurred than that at the time of the accident. Oriental Express Co. v. Puget Sound Tr. L. P. Co., 113 Wash. 520, 194 P. 781. The offer in evidence of the photographs presented, the majority opinion states,

". . . to the court a preliminary question to be decided by it which involved an element of discretion or judgment which ordinarily will not be disturbed by the reviewing court."

I agree that the question as to the admissibility of the photographs in evidence was one for the determination of the trial court, "and will not ordinarily be revised on appeal." 10 R.C.L. 926.

"It may be stated as a general principle that whatever, to the ordinary reasoning mind, is logically probative of a fact in issue, is prima facie admissible and should not be excluded unless its admission is in conflict with some principle of law or in violation of some rule of policy. Evidence, however, must relate to and be connected with the transaction it is offered to elucidate, and this connection must be immediate, and not remote or far-fetched. . . .

"It is an established rule, governing the production of evidence, that the evidence offered must correspond with the allegations, and be confined to the point in issue. It is not necessary, however, that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, orconstitutes a link in the chain of proof." (Italics mine.) 10 R.C.L. 926-928.

The question for the determination of the jury was whether on January 18, 1932, the shoulder was of a width that would permit respondent's automobile, as respondent alleged and testified, to be parked thereon with all four wheels of the automobile off of the paved portion of the highway. It is a rule, so uniformly followed as to need no citation of sustaining authority, that the object to which testimony relates may be brought into court and exhibited when this can be done. As a preliminary to the introduction of any object in evidence, it must appear, however, that such object has not undergone any change by reason of lapse of time, or otherwise, since the time in issue. 10 R.C.L. 992.

A photograph of the scene of an accident is not admissible in evidence unless it is taken under conditions sufficiently similar to those at the time of the accident as to make such photograph an accurate representation of the situation at the time of the accident. The pictures were not taken under conditions sufficiently similar to those at the time of the accident, and their admission in evidence could not other than confuse the jurors or convince them that the photographs taken after the shoulder was widened was a true representation of the situation at the time of the accident; that the respondent's automobile was off of the pavement at the time of the collision. The court's admonition to the jury respecting the photographs could not cure the error committed in admitting them in evidence.

The instruction as to the windshield equipment was prejudicially erroneous if, as appellant contends, it submitted for the determination of the jury an issue about which there was no controversy or upon which there was no substantial or competent evidence. Parton v. Barr, 168 Wash. 60,10 P.2d 566.

The court instructed the jury that the respondent in his complaint charged the appellant with several acts of negligence, among which was that the appellant failed

". . . to have the windshield of his automobile equipped with a cleaning device for cleaning rain, and sufficient to afford the operator clear vision ahead."

The jury were further instructed:

"If the plaintiff satisfies you by a fair preponderance of the evidence that the defendant was guilty of negligence in one or more of the particulars alleged in the complaint, and that such act or acts of negligence was or were the proximate cause of the accident, and of plaintiff's injuries and damages, if any, then your verdict must be in favor of plaintiff, if you find he was not guilty of contributory negligence. . . .

"You are instructed that under the statutes of the State of Washington regulating the operation of motor vehicles, every windshield of a motor vehicle shall be equipped with a device for cleaning rain, snow, or other moisture from the exterior portion of the windshield sufficient to afford the operator clear vision ahead, which device shall be controlled or operated by the driver of the motor vehicle."

Though respondent alleged negligence on the part of appellant in failing to comply with the statutory requirement respecting equipment of each motor vehicle with a windshield-cleaning device, there was no competent evidence to support that allegation.

Appellant's automobile was equipped with a windshield-cleaning device. One witness testified that he examined that automobile twenty hours after the accident. His inspection disclosed that the windshield was "generally muddy except where the swipe was" and that the portion of the windshield over which the swipe would operate was cleaner than the remainder of the windshield; that it was "fairly clean." Another witness, an automobile mechanic, testified that he examined appellant's automobile five or six days after the accident, at a garage in which the automobile was placed the night of the accident and where it remained until after that examination. This witness found a big crack in the hose which feeds the swipe — so large that it would prevent operation of the swipe. His testimony is quoted in the majority opinion. There was no other testimony as to the sufficiency of the windshield swipe.

Appellant's automobile, proceeding at the rate of twenty-five or more miles an hour, collided with respondent's car on its right-hand side of the road and then caromed off and hit another car on its left-hand side. As a result of the collisions, one would be likely to find a break in any part of the mechanism of appellant's automobile. The fact that there was such a break in the mechanism of the automobile after the collisions is not competent evidence of the existence of such break prior to the collisions. Frowd v. Marchbank, 154 Wash. 634,283 P. 467.

The majority argue that, as one witness testified that, by the aid of his headlights, he could see a person one hundred feet distant on the night in question, and as appellant testified his headlights were not defective, it does not appear to be reasonable for the appellant, if he was looking straight ahead, to have failed to see respondent's automobile as he approached it; that the evidence respecting the windshield swipe was admissible because, if the headlights of appellant's automobile were good and he was looking straight ahead, he could have seen respondent's automobile if his windshield swipe had not been defective; and that, if the windshield swipe were not defective, the headlights were insufficient, otherwise the appellant would have seen respondent's automobile.

The accident occurred on a stormy night. The majority presume that, because, at the instant, the witness saw a person straight ahead a distance of one hundred feet, the appellant, a short time later, should have seen the respondent's automobile. That conclusion, inference or presumption serves as a base for the further presumption that the appellant could have seen the automobile if his windshield had not been defective. The further presumption is indulged that appellant could have seen if his headlights had not been defective, and on this chain of presumptions the majority holds that evidence which the courts have uniformly decided is incompetent is admissible.

When the existence of a state of things is once established by proof, the law presumes that the state of things continues to exist as before until the contrary is shown, or until a different presumption is raised from the nature of the subject in question. 10 R.C.L. 873. It is not, however, a legitimate inference that, because at one instant on a stormy night one person may see an object a certain distance, another person a few minutes later must have also seen the same object if he had looked.

I am also convinced that the respondent was guilty of contributory negligence which bars his right to recover, and that the action should be dismissed. In any event, the judgment should be reversed and the cause remanded for a new trial.

STEINERT, J., concurs with MILLARD, J.