53 Wash. 316 | Wash. | 1909
Respondent brought this action to recover for personal injuries alleged to have occurred by reason of falling into a hole in a public street in West Seattle. The cause was tried to a court and jury, and resulted in a verdict in favor of the plaintiff for $2,500. The defendant appeals from a judgment entered on the verdict.
Many errors are assigned which are not necessary to be mentioned specifically. We shall notice those only which appellant seems to rely upon, and which may arise upon a new trial. Appellant contends that the claim for damages, which was filed with the city under § 29 of art. 4t of the city charter, is insufficient, because (1) the claim does not accurately locate and describe the defect which caused the injury, and (2) because the evidence shows that the respondent was a married woman, and the claim was verified and filed by her without her husband joining therein. The claim filed with the city recites that: ■
“On the evening of the 11th day of November, 1907, at the hour of about 6:30 or 7:15 o’clock, the night being very dark, and that portion of Railroad avenue lying in front of the new ferry slip was unlighted, and the trestle work in said street at said point was open excepting for the ties of the Northern Pacific Railway Company and the Seattle Electric Company, and between its ties an opening was left and no railings surrounded the said open place, and the same could not be seen by any person, and the street had been in that condition and had remained for more than six months, and the same was known to the officials of the city,” etc.;
that petitioner went from the new ferry slip “to the street known as Railroad avenue in West Seattle, and without fault . on her part fell into an opening and fell a distance of ten
It is next alleged that the claim is invalid because the respondent was a married woman and the claim was not signed by her husband. . We held, in Davis v. Seattle, 37 Wash. 223, 79 Pac. 784, that a claim of this kind, filed by a married woman in her own name, was sufficient. The evidence in this case shows that the respondent is, and has been, living separate and apart from her husband. Under these conditions she was authorized, by subdivision 3 of Bal. Code. § 4826 (P. C. § 254), to maintain the action alone.
Appellant next urges that the court erred in excluding certain cross-examination of respondent’s witnesses. A reading of the evidence convinces us that the court did not abuse its discretion in these matters. We deem it unnecessary to set out the facts' or discuss these points more particularly.
The respondent was permitted to testify, in substance, over appellant’s objections, that her eyesight was affected by the injury she received, and also that, after she recovered from the external effects of her injuries, she suffered, and still suffers, from excessive menstruation. She testified on cross-examination that she knew of the injury to her eyesight within five days after the accident. The appellant contends
“She was greatly bruised and injured and her whole right side was paralyzed and she suffered great pain under her kidney and right hip joint and she also suffered severe pains in her right leg.”
The injuries as alleged in the complaint were described as follows:
“Plaintiff’s right hip joint was dislocated, her right leg paralyzed; she was greatly bruised over the lower portion of her abdomen on the right side, and she received a severe shock to her nervous system, through which her eyesight has been impaired. She became unconscious from said fall, and remained so for a long space of time, and was obliged to take to her bed as aforesaid for a period of practically three weeks, during all of which time plaintiff suffered great mental pain and bodily anguish, and thereafter plaintiff was obliged to use crutches for a long space of time; that plaintiff’s physical health has been greatly impaired, and she can do no heavy work whatever; that on account of such injury, plaintiff’s right shoulder has become lower, and her whole body has become disfigured.”
It will be noticed that the complaint in the paragraph above quoted alleges an impairment of the eyesight, but the claim filed with the city, upon which the action was based, makes no mention of this injury. The respondent testified that she knew, within five days after the accident, that her eyesight was injured. The claim was not filed with the city until twenty-one days after the accident. It is clear, therefore, that the respondent knew of this injury to her eyes some two weeks before she filed her claim, and she did not base any damage thereon. In Durham v. Spokane, 27 Wash. 615, 68 Pac. 383, in speaking to the question presented here, we said, at page 621:
“It is manifestly just, and seems to be the rule of the cases, that all of the known effects of the injury, upon which*320 the claimant intends to rely for recovery, should be stated, in the claim, where the statute or charter requires the nature and extent of the injuries received to be stated. This does not mean, however, that the claim will be construed with technical strictness, or that a general statement of the injuries received will preclude proofs at the trial of the natural and proximate results of the injuries described.”
It is certainly not an unreasonable requirement that a known injury of this character shall be stated in the claim,, and, if not so stated, no recovery can be based thereon. The trial court, therefore, erred in submitting this element of damage to the jury.
Neither the claim filed nor the complaint alleged excessive menstruation as an element of damages, but the court,, over the objection of the appellant, permitted evidence to go to the jury upon that point. If we concede that excessive menstruation may be a natural and proximate result of the-general injuries alleged, and if we concede further that the-complaint might have been amended at the trial so as to embrace that element, yet where the defense was taken by surprise when evidence to .that effect was offered in the absence-of any allegation of the kind in the complaint, and when a continuance is asked in order to meet such new issue, as was the case here, we think the court should either have rejected! the evidence or continued the case for a reasonable time at the request of the appellant, in order that it might be prepared to meet the new issue.
Certain city ordinances granting railroad franchises were-introduced in evidence, and parts thereof were read, over the-objection of appellant. These ordinances were offered ostensibly for the purpose of showing that the hole into which respondent fell was in a public street. Parts thereof were-properly admitted for that purpose. But certain sections were to the effect that the railroad companies were required' by the ordinances to keep the streets in repair, and that such railroads were liable to the city for injuries on account of' defects in the street made by such railway companies. The-
We find no error in the other assignments, but on account of the errors above discussed, the judgment must be reversed and a new trial ordered.
Ceow, Chadwick, Fullerton, and Morris, JJ., concur.
Rudkin, C. J., Dunbae, Paekee, and Gose, JJ., dissent.