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be found separately, and that the building of fact occurred, it may order the jury to ve the owner to be moved or the part thereof neces- conducted in a body, in the custody of a sary to be taken shall also be found by the jury. Held, that such provision was inapplicable proper officer to the place which shall be where the land and buildings thereon were dam- shown to them by the judge, or by a person aged only by a change of street grade, and did appointed by the court for that purpose." not require separate findings on the damages to the buildings and the value thereof to the owners

Ballinger's Ann. Codes & St. § 4998. This secto remove.

tion is broad enough to cover condemnation 8. SAME-TRIAL-RECEPTION OF EVIDENCE.

proceedings, and expressly authorizes the Where certain documentary evidence was court to appoint a person other than a bailoffered by a city to show its right to institute | iff to point out the place or property to the proceedings for the assessinent of damages to abutting property owners by the regrade of a

jury. Nor in our opinion is the scope of street, such evidence was in the case for all this section limited by the provision of the purposes, and it was not necessary to reoffer it act under which this proceeding was instieach time the court took up the claim for dam

tuted, authorizing the court upon motion of age to a particular tract.

the city, or of any person claiming compenAppeal from Superior Court, King County;

sation, to "direct that said jury (under the Miles Poindexter, Judge.

charge of an officer of the court) shall view Proceeding by the city of Seattle for the

the premises which it is claimed by any parregrading of Jackson street, etc., in said city.

ty to said proceeding will be taken or damFrom a judgment assessing damages for in

aged by

by said improvement." Ballinger's juries to abutting property, certain property

Ann. Codes & St. $ 783. A view in many cases Owuers appeal. Affirmed.

would be futile unless the judge or some perG. Ward Kemp, for appellant. Scott Cal

son by him appointeil were authorized to houn and 0. B. Thorgrimson, for respondent.

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. RUDKIN, J. This is an appeal by prop

Objections to the personnel of the person aperty owners from a judgment entered on the verdict of a jury in a condemnation proceed

pointed or that he was not sworn should be

taken at the time of the appointment, and ing instituted by the city of Seattle.

cannot be urged for the first time on motion The appellants were the owners of lots 5 and 6 of block 48 of D. S. Maynard's plat,

for new trial. In People v. Johnson, 110

X. Y. 134, 17 X E. 681, the court said: situated on the corner of King street and

"The omission of the trial court to cause Seventh avenue. The plan adopted for the

the ofiicer in charge of the jury, while takregrade of Jackson and other

other adjacent streets of the city called for a cut of approx

ing a view, to take the oath prescribed by imately 15 feet in the streets abutting on the

section 412, is an irregularity merely, which appellants' premises. This cut was to be

could be waived by the defendant, and was,

we think, by the consent of his counsel that made with one to one slopes, so that the top of the cut would extend approximately 45

such view should be taken, and by his omisfeet back on the adjacent lots, and would

sion to object or call the attention of time destroy in whole or in part the foundations

court to the want of such oath.” The court of some four or five buildings situated on the

further added: "However that may be, it appellants' lots and owned by them. Dur

was, upon the facts in this case, a question ing the progress of the trial the court di

for the court to determine whether any subrected that the jury view the premises, in

stantial right of the defendant had been prejcharge of Mr. Alexander, one of the bailiffs

udiced by the conduct complained of, and of the court, and that a Mr. Jeffrey, the

we do not think there is any sufficient reasame person who pointed out the King street

son for us to interfere with the conclusion property to them, should also point out this

reached by it in respect thereto." Here, alparticular tract. At the time this order was so, there is an utter failure to show that any made the appellants interposed a general ov- substantial right of the appellants was prejjection “to the court allowing Mr. Jeffrey | udiced by the conduct complained of. Tesor any person to go with the jury except the timony was admitted tending to show that bailiff," and excepted to the court's ruling. some of the buildings might be lowered, or In an affidavit filed in support of a motion moved off the premises and moved back, for a new trial the further objection was after the lots were cut down to the regrade. raised that Mr. Jeffrey was an officer of the The admission of such testimony is assigned city and a witness on the trial, and was not as error. The testimony was so slight and sworn to perform any duty except as such general in its character that it would be difwitness. For reasons hereinafter stated, the ficult to predicate any prejudice upon its adspecific objections raised by the motion for a mission, but in any event the buildings were new trial cannot be urged at this time. The not taken, and the question whether they general statutes of the state provide that were a total loss to the owners or could be “whenever in the opinion of the court it is lowered or moved back onto the lots after proper that the jury should have a view of the regrade would seem to be material. The real property which is the subject of litiga- question whether this could be done, or tion, or of the place in which any material whether there was any place to put the

(47 Wash. 303) ROBINSON V. SPOKANE TRACTION CO. (Supreme Court of Washington. Oct. 10, 1907.) 1. NEGLIGENCE EVIDENCE ADMISSIBILITY-EFFECT OF PENDING LAWSUIT ON NEUBASTIENIA.

Where, in a personal injury action, there was evidence that plaintiff was suffering from neurasthenia, defendant should have been permitted to show what effect upon that condition the pendency of the lawsuit, the interest in and excitement of the approaching trial, would have. 2. DAMAGES-PERSONAL INJURY - EXCESSIVENESS.

In a personal injury action, the weight of the evidence showing that the injuries had produced a condition of neurasthenia rather than myelitis, as claimed by plaintiff, a verdict for $8,000) was excessive by at least $3,000; plaintiff being 23 years old and earning $70 to $85 per month.

[Ed. Note.-For cases in point, see Cent, Dig. vol. 15, Damages, § 367.]

Rudkin, J., dissenting.

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Personal injury action by Lee H. Robinson against the Spokane Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff remit $3,000; otherwise, new trial ordered.

Graves, Kizer & Graves, for appellant. Kenyon & Setters, for respondent.

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. The 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.

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

HADLEY, C. J., and FULLERTON, CROW, DUNBAR, and ROOT, JJ., concur.

on, making visits upon him as follows: One, thought that a portion of the conditions now in January, eight in February, one in March, existing would be permanent. one in April, one in May, and gave him one Plaintiff remained at the hospital about one prescription in July. The accident occurred week, and was then taken to his home, where January 31, 1906, and the case came he remained for about three months before for trial October 11, 1906. The family physi- going out. The chart record kept by the nurse cian was a witness for plaintiff upon the at the hospital was introduced in evidence. trial. Testifying to his first examination, he The record of the first night was not on the stated as follows: "He was apparently suf- chart. The latter showed that the plaintiff fering a great deal of pain, the muscles of his slept well every night, except the first night back were rigid, and upon any movement or recorded, when he slept only part of the touch it seemed to cause him a great deal of night. The nurse who prepared the chart distress. Q. Were there any other evidences and waited upon respondent testified that of injury? A. No; I do not remember of any the attending physician directed that certain other at the present time." This doctor, un- medicine to produce sleep be given the patil a few weeks before the trial, considered tient in case he was unable to sleep, but that plaintiff's condition as one of neurasthenia, the medicine was not given, for the reason ind plaintiff's complaint alleged that the in- that he slept readily without such medicine. juries had induced and resulted in a neu- Plaintiff testified that he took medicine, aftrasthenic condition. Upon the trial, how- er leaving the hospital, to make him sleep. ever, plaintiff changed this theory, and urg- The defendant placed upon the witness ed that the injury had resulted in myelitis, stand six physicians. One of them was a instead of neurasthenia. Neurasthenia is a doctor whom the plaintiff or his family had somewhat indefinite term applied to certain called to examine him, and most of them nervous conditions, while myelitis is a dis- were physicians who had been appointed as eased condition or degeneration of the spinal a commission to make an examination of the cord, and is regarded as a much more seri- plaintiff's condition. All of these doctors ous ailment than neurasthenia. The family swore positively that plaintiff's condition physician upon the witness stand was asked was not myelitis, but neurasthenia. Most of as to the present nervous condition of plain- these doctors were men of extended experitiff. He answered: "He seems to be ex- ence, and some of them of many years' expetremely nervous at the present time, in the rience with nervous ailments and conditions. way that he had not full control of his nerv- Several of them showed themselves to be ous faculties and his nerves are very irri- well acquainted with radiographs, and, upon table, more irritable than a nervous person." examination of the pictures in evidence, statIt was urged on behalf of plaintiff that there ed positively that there was nothing whatwas a fracture of the rib where it joins the ever therein to show any injury to the vertwelfth dorsal vertebra. With reference to tebra or ribs, or anything whatsoever abthis, the family physician testified as fol- normal. None of the doctors on either side lows: "Q. Did you diagnose the case as frac- found any scars or any outward indications ture of the rib at the twelfth dorsal vertebra? of an injury, except that shortly after the A. I could not. Q. On the contrary, you injury the muscles in the small of the back diagnosed it as not being any fracture, did were somewhat swollen. The plaintiff apyou not? A. I think I did; yes, sir." It was peared to still have a pain in that region, the contention of plaintiff that the fracture leaned forward when sitting, and in rising had superinduced myelitis. The following from a sitting position appeared to require a questions were propounded to this physician, cane or something to take hold of in order and answered as indicated: "Q. Now, what to rise, and was evidently in a nervous condikind of myelitis is this? A. Well, there is a tion, frequently contracting various muscles lesion of the spinal cord and degeneration of of the body and acting uneasily. Plaintiff the tracts of the spinal cord; but I am testified that he had lost some 20 pounds in not up in nervous diseases, not enough to weight, and that he had suffered much pain know the distinction between the anterior, and sleeplessness, and was unable to walk and positive or lateral. Q. You are expert without canes. His skin was not of good enough to know it is myelitis, but not expert color. Some of the muscles of the hips and enough to know what kind of myelitis it is? legs did not appear to act normally. A. Yes.” Besides this physician, the plain- Plaintiff placed in evidence a report of the tiff put upon the stand one other. He made commission of physicians who examined him. some radiographs with an X-ray machine, It contained a history showing that he was and gave it as his opinion that there was a in bed seven weeks with typhoid fever in fracture of the twelfth dorsal vertebra, or of 1904, and had not been so strong since, al

1 the rib where it connects therewith. He was though he testified that he had been in as unable, however, to give any dimensions good health; that in 1901 a horse fell upon whatever of the fracture, or any definite de- him, fracturing right leg above ankle. He scription thereof. The pictures were placed was 23 years old, and testified that he was in evidence. Each of these two doctors gave earning from $70 to $85 per month. it as his opinion that plaintiff was suffering Exception was taken to the action of the from myelitis, and each testified that he į 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 lave. 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. In 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 becanie sharply defined as to whether those injuries bad 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 faror 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. Veither 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. VI. & 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 appel lant: 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)

charge of the string of cars, or either of VINNETTE ». NORTHERN PAC. RY. CO. them, have any knowledge of the child's (Supreme Court of Washington. Oct. 11, 1907.)

whereabouts, prior to the collision with her,

and did they know of the accident before DEATH-ACTION FOR-CONTRIBUTORY VEGLIGEXCE OF BENEFICIARY.

their attention was called to it after the child The father of a six year old child left her had been killed ? A. No. Who was left in in the custody of her mother, who negligently al- , charge of the child, and had the custody of lowed her unattended to cross railroad tracks

the child, the morning of the accident, and in constant use by trains. Upon the child's return she was killed by the cars. IIeld, in an just prior to the accident? A. Her mother. action for her death by the father, as adminis- If you answer to the last interrogatory that trator, for his sole benefit, that his contributory

it was the mother of the child, find and state negligence precluded his recovery.

if the mother allowed the child to cross said [Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Death, $ 25; vol. 37, Parent and Child, railway track and enter into play with some $ 87.]

other child or children near and in the vi

cinity of the railway tracks of the defendAppeal from Superior Court, King County ; Geo. E. Morris, Judge.

ant, and across said tracks from its home. A. Action by Joseph E. Vinnette against the Yes.” From a judgment entered on the gen

eral verdict. the defendant has appealed. Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals.

Th appellant's assignments of error preReversed and remanded.

sent the single question of the sufficiency of

the evidence to sustain the general verdict Carroll B. Graves, for appellant. Geo. P. and judgment. The evidence shows that apRossman, for respondent.

pellant had, when the accident occurred, two

lines of railway track, running in a northerly CROW, J. Action by Joseph E. Vinnette and southerly direction, and used exclusively against the Northern Pacific Railway Com- for distributing, moving, and storing freight pany to recover damages for the death of cars; that all trains enter and leave the city plaintiff's child. The plaintiff alleged that on other lines; that one of the tracks was his daughter, six years of age, was struck known as the "shore line," from which numerand killed by a backing train of freight cars ous spurs extended to various warehouses and while crossing defendant's tracks within the industrial plants; that the other was known limits of the city of Seattle upon a platted as the long siding," being used for switching street, and upon a crossing used and travel- and storing cars; that the two tracks, being ed by the the general public: that a city or- substantially parallel, were located side by dinance then in force prohibited the running side on a graded strip of land about 30 feet of any steam engine and cars in Seattle at a wide, between a high bluff or hill to the east rate of speed exceeding six miles per hour : and tide lands to the west ; that the soil of that the defendant was backing a train of the hillside is sustained by bulkheads; that about 16 cars at a greater rate of speed; the west line of the grade is sustained by a that the defendant had no person on the look- sea wall; that quite a number of small out at the forward end of the train as it was houses or shacks are located along the tracks, moving backward ; that no signal was given, abutting the same on either side, those to the by bell, whistle, or otherwise; and that the west being over tide lands and supported by child, being rightfully upon the alleged street piling; that a few feet further west is a puh. and crossing. was killed by reason of such lic street or boulevard, located on an elevated negligent acts of the defendant. The an- bridge constructed on piling over tide lands, swer, after admitting the killing of the child, and occupied in part by a street car line rundenied other material allegations of the com- ning into the city of Seattle; that respondplaint, and affirmatively alleged that the ent's house is built on piling between the child was a trespasser upon the railway railroad track to the east and the boulevard tracks situated in defendant's switching to the west, that he had access to the bouleyards, and that her death was occasioned by vard ; that to the east of his house, towards the negligence of her parents, who then and and abutting the railway, he has a small there permitted her to play a long and upon dooryard, floored with boards resting on the tracks. The reply denied the affirmative piles, and inclosed with fence and gate. allegations of the answer. On trial the jury There was no competent evidence that any returned a general verdict in favor of the street had ever been platted, opened, graded, plaintiff for $600, and made special findings or maintained in the space occupied by apin answer to interrogatories submitted as fol- pellant's tracks between the sea wall and hill, lows: "At what rate of speed was the string nor that such space had ever been traveled of car's moving at the time it struck the child, by teams or used for general public traffic. Catherine Vinnette? A. About six miles an There was evidence, however, showing that hour. At the time mentioned in the com- people living in the small houses and shacks plaint, and for some time prior thereto, was above mentioned frequently crossed and walkthe switch track, lying to the west of the , ed along the tracks at various points accordmain track at and near the point of the ac- ing to their own convenience. The evidence cident, used for the purpose of switching and further shows that at the time of the acstoring cars? A. Yes. Did the men in cident a switching crew was backing about

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