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be found separately, and that the building of the owner to be moved or the part thereof necessary to be taken shall also be found by the jury. Held, that such provision was inapplicable where the land and buildings thereon were damaged only by a change of street grade, and did not require separate findings on the damages to the buildings and the value thereof to the owners to remove.
8. SAME-TRIAL-RECEPTION OF EVIDENCE.
Where certain documentary evidence was offered by a city to show its right to institute proceedings for the assessment of damages to abutting property owners by the regrade of a street, such evidence was in the case for all purposes, and it was not necessary to reoffer it each time the court took up the claim for damage to a particular tract.
Appeal from Superior Court, King County; Miles Poindexter, Judge.
Proceeding by the city of Seattle for the regrading of Jackson street, etc., in said city. From a judgment assessing damages for injuries to abutting property, certain property owners appeal. Affirmed.
G. Ward Kemp, for appellant. Scott Calhoun and O. B. Thorgrimson, for respondent.
RUDKIN, J. This is an appeal by property owners from a judgment entered on the verdict of a jury in a condemnation proceeding instituted by the city of Seattle.
The appellants were the owners of lots 5 and 6 of block 48 of D. S. Maynard's plat, situated on the corner of King street and Seventh avenue. The plan adopted for the regrade of Jackson and other adjacent streets of the city called for a cut of approximately 45 feet in the streets abutting on the appellants' premises. This cut was to be made with one to one slopes, so that the top of the cut would extend approximately 45 feet back on the adjacent lots, and would destroy in whole or in part the foundations of some four or five buildings situated on the appellants' lots and owned by them. During the progress of the trial the court directed that the jury view the premises, in charge of Mr. Alexander, one of the bailiffs of the court, and that a Mr. Jeffrey, the same person who pointed out the King street property to them, should also point out this particular tract. At the time this order was made the appellants interposed a general objection "to the court allowing Mr. Jeffrey or any person to go with the jury except the bailiff," and excepted to the court's ruling. In an affidavit filed in support of a motion
new trial the further objection was raised that Mr. Jeffrey was an officer of the city and a witness on the trial, and was not sworn to perform any duty except as such witness. For reasons hereinafter stated, the specific objections raised by the motion for a new trial cannot be urged at this time. general statutes of the state provide that "whenever in the opinion of the court it is proper that the jury should have a view of real property which is the subject of litigatien, or of the place in which any material
fact occurred, it may order the jury to be conducted in a body, in the custody of a proper officer to the place which shall be shown to them by the judge, or by a person appointed by the court for that purpose." Ballinger's Ann. Codes & St. § 4998. This section is broad enough to cover condemnation proceedings, and expressly authorizes the court to appoint a person other than a bailiff to point out the place or property to the jury. Nor in our opinion is the scope of this section limited by the provision of the act under which this proceeding was instituted, authorizing the court upon motion of the city, or of any person claiming compensation, to "direct that said jury (under the charge of an officer of the court) shall view the premises which it is claimed by any party to said proceeding will be taken or damaged by said improvement." Ballinger's Ann. Codes & St. § 783. A view in many cases would be futile unless the judge or some person by him appointed were authorized to point out the particular place or premises to the jury, and we are satisfied that such a power exists in the courts of this state. Objections to the personnel of the person appointed or that he was not sworn should be taken at the time of the appointment, and cannot be urged for the first time on motion for new trial. In People v. Johnson, 110 N. Y. 134, 17 N. E. 684, the court said: "The omission of the trial court to cause the officer in charge of the jury, while taking a view, to take the oath prescribed by section 412, is an irregularity merely, which could be waived by the defendant, and was, we think, by the consent of his counsel that such view should be taken, and by his omission to object or call the attention of the court to the want of such oath." The court further added: "However that may be, it was, upon the facts in this case, a question for the court to determine whether any substantial right of the defendant had been prejudiced by the conduct complained of, and we do not think there is any sufficient reason for us to interfere with the conclusion reached by it in respect thereto." Here, also, there is an utter failure to show that any substantial right of the appellants was prejudiced by the conduct complained of. Testimony was admitted tending to show that some of the buildings might be lowered, or moved off the premises and moved back, after the lots were cut down to the regrade. The admission of such testimony is assigned as error. The testimony was so slight and general in its character that it would be difficult to predicate any prejudice upon its admission, but in any event the buildings were not taken, and the question whether they were a total loss to the owners or could be lowered or moved back onto the lots after the regrade would seem to be material. The question whether this could be done, or whether there was any place to put the
buildings in the meantime, would go to the weight rather than to the competency of the testimony.
Error is next assigned in the refusal of the court to give the following instruction: "The jury are instructed that the city of Seattle is prohibited by its charter from granting to any person an exclusive franchise for the use of any of the city streets or any part of the street"-and other instructions of like import. These instructions were offered in answer to the contention of the city that the buildings might be moved into the streets while the lots were being cut down. It is a well-known fact that cities daily license persons to occupy portions of the streets while the streets or abutting property are undergoing improvements, and their right to do so is seldom questioned. charge was properly refused.
The failure of the court to require the jury to make separate findings on the damages to the buildings, and the value of the buildings to the owners to remove, is also assigned as error. No request for such a direction was made, and no exception was taken to the failure of the court to so charge. Under such circumstances, it may well be doubted whether the question of the court's failure in that regard can be raised for the first time on motion for a new trial. But, without resting our decision upon that ground, the contention of the appellant cannot be sustained. The statute under which these proceedings were instituted (Ballinger's Ann. Codes & St. § 775 et seq.) makes a clear distinction between the taking and damaging of property. Whether such distinction is well founded in law we need not inquire, for it is only where property is taken within the purview of the statute that such findings are required. Ballinger's Ann. Codes & St. § 784. The property in this case was damaged only, and the above provision has no application. In the course of the argument to the jury, the question arose whether a certain property owner's petition was properly in evidence, and the court ruled that it was. This ruling is assigned as error. The defendants in the action were exceedingly numerous, and at the commencement of the trial the city offered certain documentary testimony of a general nature, for the purpose of showing its right to institute the proceedings, such as the property owners' petition, the city ordinances relating to the improvements, etc. It was not necessary to reoffer this documentary evidence every time the court took up the claim for damages to a particular tract, and the court correctly ruled that such evidence was in the case for all purposes.
The judgment is sustained by competent testimony, and, there being no error in the record, the same is affirmed.
HADLEY, C. J., and FULLERTON, CROW, DUNBAR, and ROOT, JJ., concur.
ROOT, J. This is an action for damages for personal injuries sustained by plaintiff while riding in one of defendant's street cars. From a judgment for $8,000, defendant appeals.
On the trial of the cause the defendant admitted negligence, and the only questions submitted to the jury were those having to do with the amount of the recovery. The facts revealed by the evidence are about these: Plaintiff was seated in the forward end of the car, with one shoulder against the end of the car and the other against the side; his back being toward the corner. A collision occurred, and he says that he was thrown from the front of the car, and struck his breast against a seat. After the collision, he rode down town, alighted from the car, and walked into a tailor shop, where he was employed as a solicitor. Shortly thereafter a physician was sent for, who came and made a casual examination of plaintiff, and advised him to go to the hospital, where the doctor soon followed. This doctor says that at the hospital he stripped plaintiff, and made a thorough examination, and found no evidence of any injury, no mark or contusion; that plaintiff complained of pain behind the left shoulder blade. The doctor found his respiration and pulse normal, and no loss of motion or paralysis of any description. He directed that he apply some ointment to his back and take a rest. Shortly after this, the family physician of plaintiff was summoned and made an examination of plaintiff, and took charge of the case from that time
on, making visits upon him as follows: One in January, eight in February, one in March, one in April, one in May, and gave him one prescription in July. The accident occurred January 31, 1906, and the case came on for trial October 11, 1906. The family physician was a witness for plaintiff upon the trial. Testifying to his first examination, he stated as follows: "He was apparently suffering a great deal of pain, the muscles of his back were rigid, and upon any movement or touch it seemed to cause him a great deal of distress. Q. Were there any other evidences of injury? A. No; I do not remember of any other at the present time." This doctor, until a few weeks before the trial, considered plaintiff's condition as one of neurasthenia, and plaintiff's complaint alleged that the injuries had induced and resulted in a neurasthenic condition. Upon the trial, however, plaintiff changed this theory, and urged that the injury had resulted in myelitis, instead of neurasthenia. Neurasthenia is a somewhat indefinite term applied to certain nervous conditions, while myelitis is a diseased condition or degeneration of the spinal cord, and is regarded as a much more serious ailment than neurasthenia. The family physician upon the witness stand was asked as to the present nervous condition of plaintiff. He answered: "He seems to be extremely nervous at the present time, in the way that he had not full control of his nervous faculties and his nerves are very irritable, more irritable than a nervous person." It was urged on behalf of plaintiff that there was a fracture of the rib where it joins the twelfth dorsal vertebra. With reference to this, the family physician testified as follows: "Q. Did you diagnose the case as fracture of the rib at the twelfth dorsal vertebra? A. I could not. Q. On the contrary, you diagnosed it as not being any fracture, did you not? A. I think I did; yes, sir." It was the contention of plaintiff that the fracture had superinduced myelitis. The following questions were propounded to this physician, and answered as indicated: "Q. Now, what kind of myelitis is this? A. Well, there is a lesion of the spinal cord and degeneration of the tracts of the spinal cord; but I am not up in nervous diseases, not enough to know the distinction between the anterior, and positive or lateral. Q. You are expert enough to know it is myelitis, but not expert enough to know what kind of myelitis it is? A. Yes." Besides this physician, the plaintiff put upon the stand one other. He made some radiographs with an X-ray machine, and gave it as his opinion that there was a fracture of the twelfth dorsal vertebra, or of the rib where it connects therewith. He was unable, however, to give any dimensions whatever of the fracture, or any definite description thereof. The pictures were placed in evidence. Each of these two doctors gave it as his opinion that plaintiff was suffering from myelitis, and each testified that he
thought that a portion of the conditions now existing would be permanent.
Plaintiff remained at the hospital about one week, and was then taken to his home, where he remained for about three months before going out. The chart record kept by the nurse at the hospital was introduced in evidence. The record of the first night was not on the chart. The latter showed that the plaintiff slept well every night, except the first night recorded, when he slept only part of the night. The nurse who prepared the chart and waited upon respondent testified that the attending physician directed that certain medicine to produce sleep be given the patient in case he was unable to sleep, but that the medicine was not given, for the reason that he slept readily without such medicine. Plaintiff testified that he took medicine, after leaving the hospital, to make him sleep.
The defendant placed upon the witness stand six physicians. One of them was a doctor whom the plaintiff or his family had called to examine him, and most of them were physicians who had been appointed as a commission to make an examination of the plaintiff's condition. All of these doctors swore positively that plaintiff's condition was not myelitis, but neurasthenia. these doctors were men of extended experience, and some of them of many years' experience with nervous ailments and conditions. Several of them showed themselves to be well acquainted with radiographs, and, upon examination of the pictures in evidence, stated positively that there was nothing whatever therein to show any injury to the vertebra or ribs, or anything whatsoever abnormal. None of the doctors on either side found any scars or any outward indications of an injury, except that shortly after the injury the muscles in the small of the back were somewhat swollen. The plaintiff appeared to still have a pain in that region, leaned forward when sitting, and in rising from a sitting position appeared to require a cane or something to take hold of in order to rise, and was evidently in a nervous condition, frequently contracting various muscles of the body and acting uneasily. Plaintiff testified that he had lost some 20 pounds in weight, and that he had suffered much pain and sleeplessness, and was unable to walk without canes. His skin was not of good color. Some of the muscles of the hips and legs did not appear to act normally.
Plaintiff placed in evidence a report of the commission of physicians who examined him. It contained a history showing that he was in bed seven weeks with typhoid fever in 1904, and had not been so strong since, although he testified that he had been in as good health; that in 1901 a horse fell upon him, fracturing right leg above ankle. He was 23 years old, and testified that he was earning from $70 to $85 per month.
Exception was taken to the action of the trial court in refusing to let the defendant
show what effect upon neurasthenia the pendency of a lawsuit, the interest in and the excitement of the approaching trial, would have. We think this evidence was admissible. Certain remarks of the court and his manner of giving instructions to the jury are complained of, as constituting comments upon the evidence and as calculated to emphasize the importance of certain testimony favorable to plaintiff at the expense of defendant. view of the disposition which we purpose to make of the case, we think it unnecessary to go into these matters in detail.
Appellant makes no denial of its liability, but contends that the verdict was excessive, and asks to have the amount of the judgment reduced. Taking into consideration all of the evidence in this case, and viewing it. from any reasonable standpoint. as favorably as possible to respondent, we are unable to find justification for a verdict in the amount returned by the jury. The case was prosecuted upon the theory that the damages sustained by plaintiff arose principally from the injuries to his back, and the issue became sharply defined as to whether those injuries. had produced a condition of neurasthenia or myelitis. It was conceded that, if it were the latter, the damages should be greater than if the condition were the former. The evidence as it appears from this record is overwhelmingly in favor of the defendant's contention. There were six of defendant's doctors to two of plaintiff's, and it cannot be seriously contended that the evidence of each of these doctors does not compare at least favorably with that of plaintiff's physicians. In many particulars it is much more reasonable and satisfactory. Neither of plaintiff's physicians claims to have had any extended special practice or experience in nervous ailments. We recognize the fact that a jury and trial court have the advantage of seeing and hearing the witnesses and observing their demeanor upon the witness stand; but, making full allowance for this and also for the fact that reasonable men may differ considerably as to what is a suitable award in a case of this character, we are constrained to hold that no jury should, or could properly, base a verdict exceeding $5,000 in amount upon the evidence adduced in this case. If we were fixing the amount as an original proposition, we would place it at a lower figure.
The case is reversed and remanded to the lower court, with the following instructions: The respondent shall have 30 days after filing of the remittitur in the superior court within which to remit all of the judgment in excess of $5,000. If such remission be made, the judgment will stand affirmed; but, if not, a new trial shall be ordered.
HADLEY, C. J., and MOUNT and CROW, JJ., concur.
RUDKIN. J. (dissenting). The majority opinion holds that the court below erred in
excluding testimony tending to show the effect that the worry and excitement incident to the pendency of a lawsuit would have on the disease from which the respondent was suffering, and in that conclusion I concur; but I cannot concur in the final disposition made of the case. Doubtless, where the injury resulting from an error committed in the trial of a cause can be segregated from the amount of the verdict, which is otherwise supported by the testimony, the judgment may be affirmed for the residue on the remission of the excess by the prevailing party; but, where it is impossible or impracticable for the appellate court to ascertain or determine the extent to which the verdict has been affected by the erroneous ruling, a new trial must be awarded. In St. Louis, I. M. & S. Ry. Co. v. Hall, 53 Ark. 7, 13 S. W. 138, the court said: "The difficulties which would beset a court in determining the justness or excessiveness of a verdict based upon these premises alone would not be inconsiderable. But superadd the element of punitive damages, erroneously allowed, and the process by which the court is to dissect the verdict, eliminate the error, eliminate the excess of compensation, and settle upon the exact sum which plaintiff's case entitles him to have. 'passeth all understanding.' To attempt it, we think. would be a violation of the spirit of the Constitution, which intends that every litigant shall have a trial of his cause before an impartial jury upon proper declarations of the law." In Houston & T. C. R. Co. v. Bird (Tex. Civ. App.) 48 S. W. 756, the court said: "In the absence of evidence from which the jury could properly ascertain the amount of loss sustained in impairment of ability to earn money, it was error for the court to submit this element to the jury, and because of the absence of such evidence we think, also, that the verdict is excessive. What would be a proper amount, with appropriate evidence on the points indicated, this court cannot, of course, determine, and, since there was error in the charge, it cannot be cured by a remitter." To the same effect, see C., M. & St. P. R. R. Co. v. Hall, 90 Ill. 42; Seeman v. Feeney, 19 Minn. 79 (Gil. 54); Slattery v. City of St. Louis, 120 Mo. 183, 25 S. W. 521; Thompson v. Lumley, 7 Daly (N. Y.) 74; 3 Cyc. 439. If competent material testimony was excluded from the consideration of the jury, and is not now before this court, how the majority can say what the judgment should be likewise "passeth all understanding." To have reached the conclusion announced, the members of the court must have turned jurors and expert witnesses as well. In effect the majority has said to the appellant: You were denied a fair trial in the court below, but you must nevertheless submit to the payment of the largest judgment that any reasonable view of an incomplete record will warrant. From such an anomaly I dissent
(47 Wash. 320) VINNETTE v. NORTHERN PAC. RY. CO. (Supreme Court of Washington. Oct. 11, 1907.) DEATH-ACTION FOR-CONTRIBUTORY NEGLIGENCE OF BENEFICIARY.
The father of a six year old child left her in the custody of her mother, who negligently allowed her unattended to cross railroad tracks in constant use by trains. Upon the child's return she was killed by the cars. Held, in an action for her death by the father, as administrator, for his sole benefit, that his contributory negligence precluded his recovery.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Death, § 25; vol. 37, Parent and Child, § 87.1
Appeal from Superior Court, King County;
Geo. E. Morris, Judge.
Action by Joseph E. Vinnette against the Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Carroll B. Graves. for appellant. Geo. P. Rossman, for respondent.
CROW, J. Action by Joseph E. Vinnette against the Northern Pacific Railway Company to recover damages for the death of plaintiff's child. The plaintiff alleged that his daughter, six years of age, was struck and killed by a backing train of freight cars while crossing defendant's tracks within the limits of the city of Seattle upon a platted street, and upon a crossing used and traveled by the the general public; that a city ordinance then in force prohibited the running of any steam engine and cars in Seattle at a rate of speed exceeding six miles per hour: that the defendant was backing a train of about 16 cars at a greater rate of speed; that the defendant had no person on the lookout at the forward end of the train as it was moving backward; that no signal was given, by bell, whistle, or otherwise; and that the child, being rightfully upon the alleged street and crossing, was killed by reason of such negligent acts of the defendant. The answer, after admitting the killing of the child, denied other material allegations of the complaint, and affirmatively alleged that the child was a trespasser upon the railway tracks situated in defendant's switching yards, and that her death was occasioned by the negligence of her parents, who then and there permitted her to play along and upon the tracks. The reply denied the affirmative allegations of the answer. On trial the jury returned a general verdict in favor of the plaintiff for $600, and made special findings in answer to interrogatories submitted as follows: "At what rate of speed was the string of cars moving at the time it struck the child, Catherine Vinnette? A. About six miles an hour. At the time mentioned in the complaint, and for some time prior thereto, was the switch track, lying to the west of the main track at and near the point of the accident, used for the purpose of switching and storing cars? A. Yes. Did the men in
charge of the string of cars, or either of them, have any knowledge of the child's whereabouts, prior to the collision with her, and did they know of the accident before their attention was called to it after the child had been killed? A. No. Who was left in charge of the child, and had the custody of the child, the morning of the accident, and just prior to the accident? A. Her mother. If you answer to the last interrogatory that it was the mother of the child, find and state if the mother allowed the child to cross said railway track and enter into play with some other child or children near and in the vi
cinity of the railway tracks of the defend
ant, and across said tracks from its home. A. Yes." From a judgment entered on the general verdict. the defendant has appealed.
Th appellant's assignments of error present the single question of the sufficiency of the evidence to sustain the general verdict and judgment. The evidence shows that appellant had, when the accident occurred, two lines of railway track, running in a northerly and southerly direction, and used exclusively for distributing, moving, and storing freight cars; that all trains enter and leave the city on other lines; that one of the tracks was known as the "shore line," from which numerous spurs extended to various warehouses and industrial plants; that the other was known as the "long siding." being used for switching and storing cars; that the two tracks, being substantially parallel, were located side by side on a graded strip of land about 30 feet wide, between a high bluff or hill to the east and tide lands to the west; that the soil of the hillside is sustained by bulkheads; that the west line of the grade is sustained by a sea wall; that quite a number of small houses or shacks are located along the tracks, abutting the same on either side, those to the west being over tide lands and supported by piling; that a few feet further west is a public street or boulevard, located on an elevated bridge constructed on piling over tide lands, and occupied in part by a street car line running into the city of Seattle; that respondent's house is built on piling between the railroad track to the east and the boulevard to the west; that he had access to the boulevard; that to the east of his house, towards and abutting the railway, he has a small dooryard, floored with boards resting on piles, and inclosed with fence and gate. There was no competent evidence that any street had ever been platted, opened, graded, or maintained in the space occupied by appellant's tracks between the sea wall and hill, nor that such space had ever been traveled by teams or used for general public traffic. There was evidence, however, showing that people living in the small houses and shacks above mentioned frequently crossed and walked along the tracks at various points according to their own convenience. The evidence further shows that at the time of the accident a switching crew was backing about