110 P.2d 863 | Wash. | 1941
In their complaint, plaintiffs alleged that defendants' driver was negligent, in that he entered the highway without stopping, and failed to accord plaintiffs' car the right of way, to which plaintiffs were entitled. In their answer, defendants denied that their driver had been negligent, and pleaded contributory negligence on the part of Mr. Oyster. This affirmative defense having been denied by plaintiffs in their reply, the action was tried to a jury, which returned a verdict in favor of the defendants. Plaintiffs' motion for new trial having been denied, judgment was entered dismissing the action, from which plaintiffs have appealed *676
Error is assigned upon the overruling of appellants' objections to certain questions propounded to Mr. Oyster on cross-examination; upon the admission of evidence introduced by respondents over appellants' objection; upon the giving of four instructions; upon the refusal of the court to give an instruction requested by appellants; upon the denial of appellants' motion for a new trial; and upon the entry of judgment dismissing the action.
It appears from the evidence that appellants were driving upon an arterial highway; that respondents' truck was approaching from appellants' right along a side road, upon which stood a stop sign. The driver of the truck admitted that he did not stop at the stop sign, and stated that he thought he had plenty of time to cross the highway in front of appellants' car. In view of our conclusion that a new trial must be granted, further discussion of the evidence is unnecessary.
[1] Appellants asserted no claim for damages on account of loss of salary by Mr. Oyster. On cross-examination, Mr. Oyster testified that he had completely recovered, and that he had lost nothing by way of wages because of his injuries. He did not own the automobile in which he was riding, and of course no claim was asserted by way of damages to the car. By way of further cross-examination, respondents' counsel asked Mr. Oyster the amount of his salary. This question was objected to, on the ground that, as Mr. Oyster was making no claim for loss of salary, the question was improper. The objection was overruled, and Mr. Oyster answered that at the time of the accident he was receiving three thousand dollars a year. The court sustained an objection to a later question as to Mr. Oyster's compensation at the time of trial, but overruled an objection to a later question as to whether or *677 not the witness had lost any salary because of the accident, the witness replying that he had lost none.
It appeared beyond question, from the pleadings and the testimony of the witness, that Mr. Oyster was asserting no claim whatsoever for loss of salary, and that appellants were seeking damages only as compensation for personal injuries.
The amount of compensation which Mr. Oyster was receiving from his employer was immaterial, and the trial court erred in overruling appellants' objections to questions concerning that matter. Whether Mr. Oyster's compensation was small, average, or large, was not germane to the issues which the jury were called upon to determine. It was no more relevant than the amount of property he owned. His right to recover damages did not depend upon his poverty or his wealth. Wright v. Broadway DepartmentStore,
Respondents called as a witness one Ed Mayes, who, after testifying concerning certain matters upon which he was competent to testify as an expert, was permitted, over appellants' objection, to give his opinion as to the approximate speed of appellants' car at the moment of impact, based upon a hypothetical question in which the damage to appellants' car was described, and the result of the impact upon the persons riding in appellants' car was indicated, the question being aided by examination of photographs of appellants' car taken after the accident. The witness stated that he had never had any personal experience with automobile wrecks; that for twenty years he had been a dealer in automobiles, for the past seven years having *678 been selling Dodge and Plymouth cars; that, in a general way, he was familiar with the body structure, brakes, and general mechanism of the 1936 Plymouth sedans; that he had demonstrated these cars, and had tested them in various ways. The witness further testified that he was familiar with the scene of the accident. Based upon his examination of the photographs, his familiarity with the scene of the accident, and assuming the facts stated in the hypothetical question propounded to him by respondents' counsel, the witness gave his opinion as to the speed of appellants' car at the time of the impact.
On cross-examination, the witness testified that, in making his estimate, he compared the appearance of appellants' car after the accident, as shown by photographs, with other wrecked cars which he had seen, and that, concerning these other wrecked cars, his only information concerning the accidents in which they were damaged was obtained from persons who had told him about the accidents. The witness testified that no car which he had been driving had ever been wrecked, and that all of his knowledge concerning such matters was as above described.
In connection with expert testimony, several elements must be considered. One of these elements is whether or not the matter is a proper subject for expert testimony; another whether or not the witness offered is qualified to testify as an expert.
[2] In connection with the first proposition, it is the general rule that a proper matter for expert testimony is one the discussion of which calls for some special skill or knowledge beyond the understanding of the ordinary person. Cook v. StimsonMill Co.,
[4] In the case of Cook v. Stimson Mill Co., supra, this court held that two witnesses who had had some experience in railroading, were not competent to testify as experts concerning the rate of speed at which a logging train had been running prior to an accident which the witnesses had not seen, their knowledge of the matter being limited to a view of the scene of the wreck after the accident. Some expressions indicate that the court doubted that such a matter was a proper subject for expert testimony, but it was definitely held that the trial court erred in receiving over objection the testimony of the witnesses in which their opinions were stated.
In the case of Warren v. Hynes,
"One of the alleged items of negligence was that of unlawful rate of speed of respondent's automobile. The conclusion or opinion of the witness was a mere speculation or guess. He undertook to determine an issue in the cause, that of speed, when it was the sole duty of the jury to decide that issue on all the evidence. While the witness could properly testify as to the condition of both automobiles as he viewed them subsequent to the accident, he could not speculate or guess from the condition of the bumper on respondent's automobile the rate of speed at which both automobiles were traveling. This constituted an invasion of the province of the jury, and the admission of that testimony was prejudicially erroneous."
In the case of Cleasby v. Taylor,
In the case of McCarthy v. Souther,
A question somewhat similar to that now under discussion was considered by this court in the case of Comstock v. Smith,
In the case at bar, we are of the opinion that it did not appear that the witness Ed Mayes possessed any qualifications based upon experience or knowledge, which qualified him to testify as an expert upon the matter of the speed of appellants' car at the instant of impact.
The general rule, upon which respondents rely, is stated in 2 Wigmore on Evidence (3d ed.), 641, § 561, as follows:
"In most jurisdictions it is repeatedly declared that the decision upon the experiential qualifications of witnesses should be left to the determination of the trial court."
The decisions of this court in the cases of Traver v. SpokaneStreet R. Co.,
We are in entire accord with the rule, but it cannot be held that the witness Mayes possessed any special knowledge upon the matter above referred to, which would render his opinion of the least assistance to the jury. Doubtless, he had a general knowledge of the structure of automobiles, and was an excellent driver. He testified that he had seen a number of wrecked cars, but the mere fact that people had described to him, probably casually, or from a biased viewpoint, the accidents in which these cars were damaged, concerning the facts of which he knew nothing, save what was told him, would not give him any special knowledge concerning the relation of speed and impact to damage to the striking car, which would justify classifying him as an expert upon that question.
[5] Neither can it be held that the admission of his testimony was harmless error, because it bore upon a vital point in the case, the speed of appellants' car at the instant of the collision, and purported, at least, to throw light upon a question concerning which the direct evidence was in dispute. This evidence does not fall into the class of testimony considered by the court in the case of McCarthy v. Souther,supra, as in that case the testimony was simply concerning an obvious matter of common knowledge. In the case at bar, the trial court, over appellants' objection, admitted Mr. Mayes' testimony stating his opinion as to the speed of appellants' car; and in reaching their verdict, the jury, upon an important question, may have been influenced by Mr. Mayes' testimony, which, it seems clear, was improperly admitted. The testimony was improper as amounting to no more than an estimate or guess by a witness not qualified to testify as an expert. *683
Our conclusion upon the two matters above discussed renders unnecessary any consideration of appellants' assignments of error based upon instructions given to the jury and one requested instruction which the court refused.
The judgment appealed from is reversed, with instructions to the trial court to grant a new trial.
ROBINSON, C.J., MILLARD, SIMPSON, and JEFFERS, JJ., concur.