44 Wash. 505 | Wash. | 1906
Two actions were brought by Anna Hanstad, a minor, by her guardian ad litem, W. A. Larsen, who sued to recover for the death of her mother, Maret Hanstad, in one case, and in the other for alleged injuries to herself. Under a stipulation between the parties these cases were tried together, as they arose out of the same state of facts.
We will not attempt to set out the complaint verbatim, but the substance of the allegations is, that by virtue of a ticket purchased from the agent of the defendant, the mother of respondent was entitled to be carried as a passenger for hire over its said railway and on its cars and train; that on or about the 22d day of April, 1904, said minor’s mother boarded defendant’s train, at the city of Halifax, to be transported as its passenger for hire to Seattle, Washington; that she was duly received by defendant as its passenger for hire; that the defendant failed, neglected, and refused to furnish the minor’s mother with a clean and proper car and conveyance in which to make said journey, but compelled her to ride in a dirty and unclean car which contained the germs and bacteria of a certain contagious and infectious disease, known as scarlet fever or malignant measles ; that the defendant carelessly and negligently permitted the said car to be overcrowded with passengers, and neglected to have the car properly ventilated, and failed and neglected to keep said car clean and properly heated during said journey; that on the second day of said journey several of the passengers, traveling in the same car with the minor’s mother, became sick with said scarlet fever or malignant measles, being a contagious and infectious disease, and the defendant negligently and carelessly allowed said sick passengers, suffering with said contagious and infectious disease, to remain in the same car with the minor’s mother and in close proximity tc her, and carelessly failed and neglected to furnish her with any other car, and negligently failed and neglected to take any means to prevent the spreading of said disease to the minor’s mother; that thereby the disease was communicated to the minor’s mother; that she became violently sick from said disease; that the defendant negligently and carelessly allowed and suffered her to remain for one whole day in said car without any attendance or assistance; that upon the ar
The answer of the defendant was substantially a denial of the allegations of the complaint. Appellant’s contention was that the disease was measles, and not contracted upon its train by either respondent or her mother; that, even if the disease was scarlet fever, it was not contracted by any negligence of appellant, and that where and how it was contracted was unknown and not susceptible of proof. Upon these issues the case went to trial, and judgment was rendered in favor of the plaintiff for the loss of the mother in the sum of $9,000, and for injuries to herself in the sum of $6,000. On motion for a new trial, the judgment was allowed to stand upon the remission by the plaintiff of the sum of $3,000 of .the judgment rendered in favor of the plaintiff for the loss of the mother. From this judgment this appeal is prosecuted.
It is earnestly urged by counsel for appellant that no negligence on its part was proven, and that the judgment should
We note the contention of appellant that juries are prejudiced in cases of this character, and not inclined to do justice between individuals and corporations. But, if there is any force in this contention at all, it is an argument against our constitution and statutes. The jury is a co-ordinate branch of the judiciary; its duties are defined and prescribed by law, and the appellate court cannot enter into an investigation of the trial of a cause upon the assumption that the jury has been remiss in its duty. If such is unfortunately the fact, the remedy is in a change of the fundamental law.
The hypothetical questions so strenuously objected to by appellant were based upon the testimony • of respondent’s witnesses, and the objections to them were properly -overruled.
Without particularizing, we have been unable to find any prejudicial error in the admission or rejection of testimony, or in giving or refusing to give instructions, with one exception which we will hereafter notice. In our judgment,
It is contended, however, that the appellant was deprived of a fair trial by the course of conduct pursued by respondent’s counsel during the trial of the cause; that he so framed his questions as to assume the existence of facts which had neither been admitted nor proved; that on cross-examination he constantly interrupted defendant’s witnesses before they had finished answering his questions, thereby embarrassing them and preventing the elicitation of the truth, and that, by constant insinuation concerning the motives of the witnesses for the appellant, he prejudiced the jury against the appellant and its cause. A reading of the record forces the conviction upon our minds that this contention is not altogether groundless, and it is unfortunate that trial courts are not more strict in enforcing professional conduct on the part of attorneys, and in protecting witnesses from unprovoked assaults. It might be, however, considering the heat of contest, that we would not feel like reversing this judgment on any specified charge, alone, had not the counsel gone further and insisted upon commenting, in his argument to the jury, upon matters which had already been eliminated from the trial and from the consideration of the jury by the rulings of the court; these cases having been tried before a stipulation was entered, into in writing, to the effect that either party, at this or any retrial of the cases, might read in evidence any part of the testimony taken at the first hearing and transcribed by the stenographer, subject to the objections then made, and with the same effect as though the particular witness were testifying on the stand again.
“And why, gentlemen, will he attempt to read in evidence here a portion of the witness’ evidence and refuse to put in the rest, even the cross-examination of the witness? Mr.
In order to impress upon the minds of the jury that this was an improper and prejudicial statement by the counsel for the respondent, counsel for the appellant prepared and submitted to the court the following instruction:
“I further instruct you, gentlemen, that whenever evidence is offered by either side and rejected or excluded by the court, it is so rejected or excluded because it is improper for the hearing or consideration of the jury, either because it is of such a nature that it would serve to confuse the issues rather than throw light upon them, or for some other valid and proper reason. Therefore I instruct you that you will disregard any statement made in your presence concerning any evidence which has been offered and rejected by the court in this case, and that you will not allow your minds or verdict to be affected thereby in any-way or to any extent.”
The court failed to consider this question, which he had said he would consider in his instructions to the jury, and refused a proper instruction on that subject when it was offered by the appellant. It is needless to say that the comment made by counsel for respondent upon this matter was
The amount of the judgment is questioned by the appellant, but as the verdict of the jury on this question on a new trial cannot be foretold, we will express no opinion on that point in the case.
We are exceedingly loath to reverse a cause involving so much expense and delay as a retrial of this cause will, but under the record as presented it may fairly be presumed that the rights of the appellant were prejudiced, and it therefore becomes our duty to reverse the judgment, with instructions to grant a new trial.
Crow, Fullerton, and Hadley, JJ., concur.
Root, J., concurs in the result.
Mount, C. J. and Rudkin, J., took no part.