105 Wash. 469 | Wash. | 1919
Action for personal injuries tried to a jury, resulting in a verdict and judgment in favor of respondent. The facts are substantially as follows:
The respondent, an Armenian by birth, together with a number of his countrymen, were in the employ of the appellant a's laborers in an extra gang engaged in repairing or raising a portion of the company’s track near Erie, Washington. The camp where the men boarded and slept was located some two miles from the point where the work was being done, and the men went from the camp to their work and returned on hand-cars furnished by appellant. Respondent had been so employed about, four months prior to the accident. On the day of the accident, respondent, with three of his countrymen, took a handcar and proceeded from the place where the gang was at work towards Kennewick for the purpose of procuring groceries. There is a sharp dispute in the testimony as to whether they so acted upon the order of the foreman or against his expressed direction. The hand-car was the ordinary hand-propelled car such as is ordinarily in use. Respondent and the men who went with him all testified that they were going ‘ ‘ Same fast as was going to work, ’ ’ when the hand-car jumped off the track and the injuries complained of were received. When he “woke up,” respondent says the hand-ear was some four or five feet in front of him; that the left hind wheel was off the car and lying about three or four feet back of him. Neither respondent nor any of his companions appears to have made
Over the objection of the appellant, the witness Dick was permitted to testify that he went to the scene of the accident after it occurred, and while he was there the roadmaster, who had come out from Pasco, measured the track and found the gauge of the track to be right, put the car on the track, replaced the wheel and moved it for testing purposes, and then made the statement: ‘
Appellant makes three principal contentions: First, that respondent, having testified that the car was but three to five months old, which would make it practically a' new car, is bound by such testimony as much as though it were an allegation or admission in his complaint, and that no evidence should have been received to the effect that the car was old, worn or defective.
The trouble with this contention lies in the fact that respondent did not attempt to testify as to the condition of the car. True, he did say, in answer to a question on cross-examination, that it was “Four or five months old car, three or four months old car I guess.” But this in no manner admitted that the car was necessarily in good condition, or estopped him from introducing' other testimony to show that the car was out of repair and in an unsafe condition, and falls far short of bringing him within the rule for
Second. Appellant complains of the admission of testimony as to what was said by the roadmaster as to the cause of the accident. It appears that, immediately upon the report of the accident being received, the roadmaster, with others, came out from Pasco (a distance of six miles) to investigate. It does not appear how the trip was made or just how long it took, but apparently they arrived at the scene of the accident at about the same time as the section foreman and others who had been at work only about two miles distant. According to the witness, after measuring the track to see if the gauge was right, they put the car on the track to test it, and the roadmaster said: “Something the matter with the car.” We think this an expression of an opinion only, and inadmissible. The roadmaster was not present at the time of the accident; he was not in charge of the injured men, and if he had examined the car at all, he had done so only superficially. It is not claimed that he had been advised as to the speed as to which the car was traveling or the position of the men thereon at the time of the accident, or was so advised as to the facts as to enable him to express an opinion or authorize him to make an admission which would be binding upon his
Third. Since the case must be reversed for this error, we may say for the guidance of the court on a new trial that, while the complaint alleges
“Said hand-car was old and worn and some parts of the running gear thereof (the exact parts plaintiff being unable to specify) were fastened and held together by wire . . .”
yet there was no testimony in the case from which the jury could have found that any defect in the car, other than such as.related to the wheels or the manner or means by which the wheels were held in place, could have caused or contributed to the accident, and, therefore, testimony as to the wiring of any other part of the car was wholly valueless and might tend to prejudice the jury. Such evidence should have been admitted only upon condition that it be connected with the cause of the accident, and upon failure to so connect, it should have been withdrawn from the consideration of the jury.
The judgment will be reversed, with direction to grant a new trial.
Chadwick;, C. J., Mount, Tolman, Mackintosh, and Parker, JJ., concur.