56 Wash. 310 | Wash. | 1909
This action was brought to recover damages for personal injuries, alleged to have been sustained by the plaintiff while a passenger upon one of defendant’s cars.
Plaintiff alleged in substance, in her complaint, that on November 25, 1905, she boarded one of defendant’s cars, as a passenger for hire, for the purpose of taking passage thereon ; that defendant carelessly and negligently maintained and operated said cars with a trapdoor in the floor thereof, near
Defendant by its answer denied the allegations of negligence charged against it in plaintiff’s complaint, and as an affirmative defense alleged, in substance, that if plaintiff was at the time and place alleged by her a passenger upon its car, she was a gratuitous passenger traveling as such upon a pass issued at her request, without any consideration whatsoever to defendant, which was issued to and accepted by her under the conditions indorsed thereon as follows:
“In consideration of this free pass I hereby agree to assume and do assume all risk of accidents, damages and loss of property sustained by me, and I expressly agree with the Seattle, Renton & Southern Railway Company that it shall not be liable under any circumstances whether by reason of negligence of its agents or otherwise for any injury or loss to me as aforesaid.”
Plaintiff replied denying the allegations of this affirmative defense. A trial upon these issues before the court and a jury
It is first contended by learned counsel for appellant that the trial court erred in refusing to admit in evidence, offered in appellant’s behalf, the report of the accident made in writing by the conductor of the car immediately following the accident, and very soon thereafter given to the defendant, in compliance with its rules. The theory upon which counsel sought to introduce this evidence is, using his own language:
“The report was admissible as being original entries made in the regular and due course of the business of the company and made contemporaneously with the transactions recorded.”
For the sake of- argument, we may admit that the report was made in due course and in compliance with a rule and custom universally followed. Yet we are quite unable to see how the statements made in such report can escape the objection of being self-serving, in so far as they were favorable to appellant’s contentions (and of course it was because they were so favorable, that they were offered to support its contentions), being made by appellant’s agent and in its interest concerning facts which the agent at the time of taking them knew would most likely become matters of dispute and drawn into litigation. Indeed, it is evident that the very making of the report upon the facts surrounding the accident was prompted by the possibility of the respondent claiming damages and suing the appellant therefor. Counsel cite the case of Callihan v. Washington Water Power Co., 27 Wash. 154, 67 Pac. 697, 91 Am. St. 829, 56 L. R. A. 772, in support of his contention. In that case the question of fact was involved as to whether or not a woman'was a passenger upon a certain car during a certain trip, she having testified that she had paid her fare by a transfer slip. The conductor’s trip report, identified by him and offered in connection with his oral testimony, which had' been made in usual course of business
“It may be stated that the general rule is that the previous declarations of a witness out of court, and not sworn to, are not admissible to sustain his evidence given in court. The reason for this rule is that such declarations are or might be self-serving, and, as has frequently been said, make a witness’s credibility depend more upon the number of times he had repeated the same story, than upon the truth of the story itself.”
We think the trial court correctly ruled in excluding this evidence.
Learned counsel for appellant contends that the trial court erroneously denied his motion for nonsuit at the close of respondent’s evidence upon the trial, and also erroneously denied his motion for a new trial; both of which involved the sufficiency of the evidence to support a recovery by respondent. These two contentions are argued separately in appellant’s brief, but in view of the fact it voluntarily proceeded with the trial and introducing evidence after the denial of its motion for nonsuit, the question of the sufficiency of the evi
As to the affirmative defense, that respondent was a gratuitous passenger traveling upon a pass, which was denied by her, the learned trial court fairly instructed the jury touching the legal effect upon her right to damages resulting from appellant’s negligence if she was traveling upon such pass, leaving to the jury the question of whether or not she was then traveling upon such pass, or was a passenger for hire. Upon this question of fact the evidence was in conflict. She testified, however, directly and positively that she did not then possess any such pass, and that she then paid her fare in cash. It thus became a question for the jury to determine, which their verdict shows they resolved in her favor.
We find no error in the record and therefore affirm the judgment.
Rudkin, C. J., Dunbab, Chow, and Mount, JJ., concur.