Dods v. Harrison

Schwellenbach, J.

The plaintiff’s husband died from injuries which he received on the evening of October 22, 1953, when his automobile collided with a truck driven by the defendant Harrison and owned by the defendant Beetles, at the intersection of Airport way and Spokane street, in Seattle. The complaint alleged that the defendant Harrison was negligent in entering the intersection while the traffic signal was red, in failing to yield the right of way to the decedent, in failing to maintain a proper lookout, and in failing to make any reasonable effort to apply his brakes and avoid the collision. By way of answer, the defendants denied these allegations and affirmatively alleged that the decedent had been guilty of identical acts of negligence.

The jury returned a verdict for the defendants, and judgment was entered dismissing the action. This appeal is predicated on alleged errors of the trial court in excluding certain evidence and in the giving of an instruction.

It is first contended that the plaintiff should have been allowed to elicit from the defendants’ principal witness, on cross-examination, an admission that he had refused at the time of the accident to make a statement to the police. This testimony, the plaintiff maintains, was admissible for impeachment purposes, as it tended to show bias, interest, or prejudice. It was the opinion of the trial court that the testimony was irrelevant..

Facts which tend to show the bias, prejudice, or friendship of the witness for the party for whom he testifies, and to show hostility toward the party against whom he is called, may be elicited on cross-examination as a matter of right, and the denial of this right is grounds for reversal. State v. Robbins, 35 Wn. (2d) 389, 213 P. (2d) 310. Where the right is not altogether denied, the scope or extent of cross-examination for the purpose of showing bias rests in the sound discretion of the trial court. The trial court may reject cross-examination where the circumstances sought to be shown only remotely tend to show bias. State v. Robbins, supra. See, also, 3 Wigmore on Evidence, 498, 504, §§ 948, 950.

The evidence disclosed that the witness, a Mr. Cleveland, was also driving a truck on the fatal evening and had been following behind the Harrison truck from Vancouver to Seattle. He testified that the light was green on Airport way as the Harrison vehicle entered the intersection and that he saw an automobile come into the intersection on Spokane street, traveling at thirty-five to forty-five miles an hour, and collide with the truck. Shortly after the accident, both Cleveland and the defendant Harrison were at a cafe, called the “Truck and Trailer,” near the defendant Beetles’ office. Several other representatives of Beetles were also present. Cleveland testified that he did not talk to Harrison and did not see him there, but he did give a statement to a Mr. Packard, a representative of Beetles, who was present in the cafe. He had known Harrison “to speak to,” but not socially, when they both worked for the same employer six years ago.

Mr. Packard, on cross-examination by the plaintiff’s counsel, stated that he had not advised Cleveland not to talk with the police.

From this evidence, the jury could reasonably conclude that the witness Cleveland entertained some natural sympathy for the defendant Harrison, a fellow truck driver whom he had known, though casually, for a number of years. It is difficult to surmise, however, how the knowledge that he had refused to make a statement to the police could add anything to the impression created by these facts. It would have to be assumed that, had he made a statement, it would necessarily have been favorable to the driver of the automobile, whereas, the statement which he had just made to the defendant Beetles’ representative was favorable to the driver of the truck. The police were impartial investigators, not representatives of the plaintiff; and it is difficult to draw any inference of bias from the fact that the witness refused to talk with them. This refusal may have been due to any number of motives — from a reluctance to become involved to a hostility toward the police. Any inference which the jury might have drawn from the mere fact of his refusal, would have been the result of speculation and conjecture.

Counsel for the plaintiff cross-examined the witness Cleveland extensively regarding his account of the way in which the accident occurred and his activities at the Truck and Trailer cafe afterwards. On the other hand, although the police officer who investigated the accident was called by the plaintiff, he was not questioned concerning Cleveland’s refusal to make a statement to the police. If this evidence were as important to the plaintiff’s case as she contends upon appeal, it would seem likely that she would have availed herself of this opportunity to place it before the jury.

Error is assigned to the giving of instruction No. 15:

“You are instructed that if, after a full consideration of all the facts in this case, you are unable to find from a preponderance of the evidence whose negligence, if anyone was negligent, was the direct and proximate cause of the injuries complained of, then the plaintiff is not entitled to recover damages, and your verdict should be for the defendants.”

The jury had been instructed as to negligence, contributory negligence, proximate cause, and burden of proof. The court also gave instruction No. 11:

“In this case the plaintiff claims the decedent proceeded into the intersection with the green light and that the defendant Harrison entered said intersection against the red light.

“The defendants claim exactly the converse thereof: that the defendant Harrison proceeded into the intersection with the green light and that decedent entered said intersection against the red light.

“You are instructed that if, by a fair preponderance of the evidence, you find that the plaintiff is correct in her contention, and that such act on the part of the said defendant was a proximate cause of the collision and decedent was not guilty of contributory negligence, then the plaintiff is entitled to recover.

“If, on the other hand, you find by a fair preponderance of the evidence that the defendants are correct in their contention and that such act on the part of the decedent was a proximate cause of the collision, then you should return a verdict for the defendants.”

When ten of the jurors agree upon a verdict, in a civil case, the verdict shall stand as the verdict of the whole jury. RCW 4.44.380.

If, under instruction No. 11, ten jurors could not agree with plaintiff’s contention or with defendants’ contention, or, to put it another way, if six jurors agreed with plaintiff’s contention and six agreed with defendants’ contention, there would have been a “hung jury,” which would have resulted in a new trial.

Although it is advisable that jurors agree upon a verdict, nevertheless, such verdict must be the result of the combined judgment of twelve jurors in a criminal case, and of ten jurors in a civil case. Here the jurors were properly and adequately instructed in instruction No. 11. Then they were told in instruction No. 15 that if they had any difficulty in determining whose negligence, if anyone was negligent, was the proximate cause of the collision, to find for the defendants. It was an invitation to find an easy way out of a possible dilemma. It deprived the plaintiff of the possibility of a new trial which would have been ordered if the jurors had been unable to reach an agreement. In a civil cause, the failure of a plaintiff to prove his case to the satisfaction of ten jurors does not, of itself, result in a verdict for the defendant.

Instructions should be impartial and fair to both parties to a lawsuit. Where instructions are confusing to the prejudice of either party a new trial will be ordered. See Bailey v. Carver, 47 Wn. (2d) 153, 286 P. (2d) 680. We are of the opinion that instruction No. 15 was prejudicial to the plaintiff in that it tended to confuse the members of the jury as to their responsibility in the case.

The judgment is reversed and the cause remanded with direction to grant a new trial. Appellant will recover her costs on appeal.

The foregoing opinion was written by the late Judge E. W. Schwellenbach, but had not been filed at the time of his death.

There being a division among the other members of the Department, the case was set down for a rehearing En Banc on November 18, 1957. The undersigned judges, being a majority of the court, adopt the foregoing opinion of Judge Schwellenbach as the opinion of the court.

Hill, C. J., Mallery, Donworth, Finley, Weaver, and Foster, JJ.