52 Wash. 661 | Wash. | 1909
This action was commenced and prosecuted in the court below by the respondent against the appellant to recover damages for personal injuries resulting to him, caused by the alleged negligence of the appellant, while working as fireman upon its tugboat called the Stimson, on the 23d day of March, 1907, at which time he was about two months under sixteen years of age. He had had some experience
These claims of plaintiff were all supported by evidence introduced in his behalf, and except as to his age and his injury, were practically all disputed by evidence introduced in behalf of defendant. It is claimed by defendant that the
(1) E. S. Clough, a marine engineer, a witness for plaintiff, testified as to the general description of the Stimson, and especially as to the arrangement and condition of the pump. He had worked on this boat for seven years, but had not been on her or seen the pump for five years past, having left her that long since. At the close of Clough’s testimony, counsel for appellant moved the court to strike out all this evidence on account of its remoteness as to time. The court denied the motion, but intimated that he would strike it unless the conditions of the pump were later shown to be the same. Appellant excepted to this ruling. At this point no testimony other than Clough’s had been given. Later on, other witnesses gave testimony as to the present condition of the pump, which was not materially different from Clough’s testimony, save he remembered the fly wheel as being within three-fourths of an inch of the woodwork or wall, while others placed it three or four inches away; but it is not plain that they were talking of the same wall or woodwork. Clough speaks of the “back wall” and “side wall.” He was asked at one time: “Q. How far was the wheel away from the wall, as you say this is the wall? A. About probably three-fourths of an inch.” There is nothing further in the record to show what
Considerable of Clough’s evidence consisted of indicating positions upon a diagram used as an exhibit, or in some other way than by word of mouth, and this was so in the cross-examination as well as in the direct. This diagram is not clear as to the position of the walls or framework. All that was said and otherwise indicated was probably understood by the court and jury, but we have only his words to determine whether or not his evidence is materially diiferent from others as to the conditions surrounding the pump. The court must have concluded that it was not materially diiferent, and that the pump was substantially in the same condition when he last saw it as when the accident occurred. If this were true, and we cannot presume to the contrary, this evidence was probably admissible, though somewhat remote as to timé. We are not able to see from the record that the court abused its discretion .in allowing this testimony to remain, and the admission of testimony by the trial court is very largely discretionary when remoteness of time is the only objection urged against it. 11 Ency. Evidence, 178; Sunter v. Sunter, 190 Mass. 449, 77 N. E. 497; Peabody v. New York etc. R. Co., 187 Mass. 489, 78 N. E. 649.
Clough also testified to fixing a loose board in the floor near the pump which he could take up in order to more readily get hold of the wheel to throw it off center. This board did not seem to be there, according to the witnesses who later worked with the pump, but that is of minor consequence; and in any event, the evidence indicates that this arrangement of
(2) Error is assigned upon the alleged misconduct of the counsel of the plaintiff during the cross-examination of Mr. Ives, the vice president of the appellant, substantially all of which alleged misconduct is shown by the following:
“By Mr. Allen: Q. You people have and do maintain insurance with some company by which you are allowed a certain insurance on your men, is not that a fact? A. Yes. Q. And didn’t you tell Mrs. Passage not to come for the half pay for a while for it would take some time to send the papers on and get returns? A. No, sir, I referred her to Mr. Jacoby. Q. You get this half pay from an insurance company? A. We are insured. Q. And in order to get the insurance you would have to make out a claim and send it to the insurance company? A. Yes, sir. Q. And you did that in this case? A. Yes, sir. Q. And you got it from the insurance company? A. I don’t know that. Mr. Hulbert: Object to all this line of testimony. The Court: Objection overruled. Mr. Hulbert: Exception. Q. Is it not a fact it does take some time before you can pay this half pay because you have to send it to the insurance company? Mr. Hulbert: Objected to. The Court: Objection sustained.”
This, it is argued, was prejudicial to the appellant, preventing a fair trial in that its purpose was and had the effect of improperly conveying to the jury the impression that plaintiff’s damages would be paid by some insurance company if the verdict in this case went against the defendant. In support of their argument counsel cite Westby v. Washington Brick etc. Mfg. Co., 40 Wash. 289, 82 Pac. 271. We think the questions and remarks of counsel constituting the misconduct in that case presented to the minds of the jury the impression that any damages they might award the plaintiff would not have to be paid by the defendant, but by some insurance company, very much more forcibly than in this case. It is not at all clear what kind of insurance is here referred to by counsel. One might infer that it was simply accident insurance not depending on defendant’s negligence,
(3) It is next contended that the trial court erred in denying the plaintiff’s* motion for nonsuit, and also in denying its challenge to the sufficiency of the evidence and motion for judgment accordingly, at the conclusion of the entire evidence — the argument being that no negligence was proven against the defendant, that plaintiff was guilty of contributory negligence, and that he assumed the risk. The evidence covered some two hundred pages of typewriting, and we have taken considerable pains in reading and examining all of it. It is not practical within any reasonable limits, nor do we deem.it necessary, to analyze the evidence in detail here. It is sufficient to state that we find conflicting testimony on substantially all questions of fact upon which these motions rest for their proper solution. There is no dispute as to plaintiff’s being under sixteen years of age, or as to his being acquainted with this pump but one week. There is but little dispute as to the nature and extent of plaintiff’s injury, as to the amount of his experience generally, which in any view of the evidence was comparatively limited, or as to the neces
(4) It is contended that the trial court erred in giving the following instruction:
“I charge you that if the servant is injured by danger which is known to him, or which in the exercise of care and intelligence on his part he should have known, yet if in a moment of forgetfulness, while in the discharge of his duties, and owing to the haste required to perform such duties, he momentarily forgets such danger and in such moment of forgetfulness is injured, that does not in law preclude a recovery. That is, the minute that fact appears, it is not proper for law to say, You cannot recover because you knew of the danger and you forgot it. That is a fact and circumstance which you may take into consideration with all the other facts and circumstances in determining the character of the danger and determining the question whether or not the servant was guilty of negligence.”
It is not contended but what this is, generally speaking, a correct statement of the law. Indeed, it finds support in King v. Griffiths-Sprague Stevedoring Co., 45 Wash. 425, 88 Pac. 759; and Hoff v. Japanese-American Fertilizer & Fisheries Co., 48 Wash. 581, 94 Pac. 109. But counsel argue that it has no application here as plaintiff was injured by machinery that he was working with and upon, and that the
“But in determining whether an employee has recklessly exposed himself to peril, or failed to exercise the care for his personal safety that might reasonably be expected, regard must always be had to the exigencies of his position, indeed, to all the circumstances of the particular occasion.”
(5) Error is claimed by the appellant in the giving by the court of an instruction to the effect that in compensating plaintiff for injuries, if the jury should find for him, they might take into consideration his probable future suffering, and also the loss, if any, of his probable future earning capacity. Counsel objects to this instruction because of lack of evidence as to his future suffering and future earning capacity. It is true the direct evidence on this question was very slight, but the plaintiff testified to some present pain and to some present weakness in his hand; this together with the actual loss of his finger rendered this instruction proper. The smallness of the verdict renders it practically certain that it did not act to the prejudice of the defendant.
(6) Appellant contends that the trial court erroneously refused to give the following requested instruction:
“I ask the court to instruct the jury also not to consider the fact of the wheel being close to the wall on the left hand side as the witness, the plaintiff himself, testified it had nothing to do with the accident.”
In the description of the pump and its surroundings, witnesses had testified as to the distance of the wheel from the wall, which testimony tended to show the limited working space surrounding the pump, and in the somewhat extended and searching cross-examination of the plaintiff, it was asked and answered as follows:
“Q. You didn’t get your hand caught in between the wall and the fly wheel on the left hand side? A. No, sir. Q. And the wall on the left hand side didn’t have anything to do with your injury, did it? A. No, sir. Q. The fact of the wall being there within about four inches of the fly wheel, that didn’t have anything to do with your getting your finger caught in there, did it? A. No, sir.”
This, it is argued, rendered all.testimony as to the proximity of the wall irrelevant and was prejudicial since its tendency
(7) Error is claimed by appellant based upon the court’s refusal to give certain other requested instructions. However, we are satisfied from a careful examination of those given by the court that the same ground was in substance covered, at least to the extent required in the case.
The foregoing disposes of all the matters complained of which we deem necessary to review. There were some other minor assignments of error, but they are disposed of in the foregoing in so far as they require discussion. We conclude that the record does not show any reversible error, and therefore the judgment of the lower court is affirmed.
Mount, Dunbar, Gose, Crow, Fullerton, and Morris, JJ., concur.