33 Wash. 481 | Wash. | 1903
The respondents are husband and wife, and this action was brought to recover damages for alleged personal injuries sustained by respondent Christina D. Smith. It is alleged that, at the time the injuries were re
The answer is a general denial, and also contains an affirmative plea of contributory negligence. The cause was tried before a juiy, and a verdict was returned against the defendant city in the sum of $7,633. The defendant’s motion for new trial was denied, and judgment was entered for the amount of the verdict. The city has appealed.
It is assigned that the court erred in permitting respondents to prove, over appellant’s objection, instances of other persons at other times slipping upon, or falling over, the doors upon which it is alleged the respondent llrs. Smith stumbled and fell. It is insisted by appellant that the most that may be urged in favor of this testimony is that it was competent for the purpose of showing con
That the testimony was relevant to the question of notice is practically conceded by appellant, and, in any event, we think it was so under many authorities. It is true that, while notice was in issue under the pleadings, it was admitted at the trial; but in Fitzgerald v. School Dist., 5 Wash. 112, 31 Pac. 421, it was held that, while it is unnecessary, to make proof of admitted facts, yet the error in admitting such testimony is immaterial and not prejudicial. To the same effect is Jones v. Allen, 85 Fed. 523, in which the court, at page 525, said:
“It may be that it was unnecessary to have read the records in evidence because the facts which they tended to prove were in effect admitted by the pleadings. But*485 if the plaintiffs saw fit to establish the, allegations of their complaint with greater certainty by introducing the records, the defendants cannot be heard to complain. They were not prejudiced by the proof of facts which they had admitted.”
See also: People v. Fredericks, 106 Cal. 554, 39 Pac. 944; Consaul v. Sheldon, 35 Neb. 247, 52 N. W. 1104; Trogdon v. State, 133 Ind. 1, 32 N. E. 725.
While this class of evidence, as pertinent to the subject of notice, may not have been necessary under the admission of appellant, yet we think it was admissible upon another theory; viz., that it tended to be descriptive of the condition of the sidewalk. It was so strongly intimated, if not actually held, in Elster v. Seattle, 18 Wash. 304, 51 Pac. 394. The same rule was declared in District of Columbia v. Armes, 107 U. S. 519, 2 Sup. Ct. 840, 27 L. Ed. 618. In that case, when referring to the evidence of other accidents at the same place as the one in question, Mr. Justice Eieed said, at pages 524, 525:
“They were proved simply as circumstances which, with other evidence, tended to show the dangerous character of the sidewalk in its unguarded condition. The frequency of accidents at a particular place would seem to be good evidence of its dangerous character—at least, it is some evidence to that effect. Persons are not wont to seek such places, and do not willingly fall into them. Here the character of the place was one of the subjects of inquiry to which attention was called by the nature of the action and pleadings, and the defendant should have been prepared to show its real character in the face of any proof bearing on that subject.”
See also City of Topeka v. Sherwood, 39 Kan. 690, 18 Pac. 933; Lombar v. Village etc., 86 Mich. 14, 48 N. W. 947.
While the authorities are not uniform as to the admissibility of this class of evidence for the purpose last stated,
One witness testified over objection that he had looked the city over and had not been able to find another door projecting above the sidewall?: approximating the height of the ones in question. It is urged, that the admission of this testimony was error; that there was no issue as to the character of other doors in the sidewalks; that appellant had no notice that such testimony would be offered, and was therefore unprepared to meet it. It was, however, alleged in the complaint, and denied by the answer, that all other similar openings in the sidewalks of the city were protected by coverings which did not project-above the level of the adjoining sidewalk. As far as the pleadings were concerned, appellant had, therefore, joined issue upon that subject, had not moved to eliminate it from the complaint as immaterial, and did have notice that respondent might seek to show it by evidence. But whether the testimony became material by reason of the pleadings or not, we do not think it was prejudicial to appellant. It was not sought to show that the city was negligent in this instance by reason of negligence in other instances, but rather that, at all other places where trap doors were permitted in the sidewalks, due care had been
We also think that the testimony was pertinent as béaring upon the question of contributory negligence, which was made an issue by the pleadings. One accustomed to using the sidewalks of the city and finding them uniformly free from obstructions of the kind alleged in this case, would naturally, without knowledge of the particular defect, presume that all the sidewalks were in like safe condition. While such a presumption is ordinarily indulged in any event, as arising out of the duty of the municipality to keep the sidewalks reasonably safe for travel, yet in this instance the testimony tends to show that the injured respondent was not, by reason of ordinary conditions existing on the sidewalks of the city, under any special duty to be on the lookout for such an obstruction. To such effect is the rule applied in Lamb v. Worcester, 177 Mass. 82, 58 N. E. 474; Grace & Hyde Co. v. Kennedy, 99 Fed. 679. The testimony was, therefore, not incompetent if it reasonably appeared that the city was negligent in permitting the maintenance of the doors in question, which the witnesses’ testimony tended to show was the only place of like character in the city.
Whether the doors and surroundings were of such character as made them unsafe to pedestrians, and thus established negligence, was, of course, for the jury, if the evidence thereof reasonably justified its submission to the jury. Pertinent to that subject we may say that the evidence of respondents’ witnesses as to the height of the doors and hinges above the sidewalk, while varying somewhat, was to the effect that such elevation was from two fo four inches. One witness testified that he saw it measured with a spirit level, and that the doors proper were one and one-half inches, and the hings about two and one-
That the evidence as to the slippery surface of the metallic doors was also properly for the jury is sustained by the following: 15 Am. & Eng. Enc. Law, 458, 459 (2d ed.); Cromarty v. Boston, 127 Mass. 329, 34 Am. Rep. 381; Lyon v. Logansport, 9 Ind. App. 21, 35 N. E. 128; Leonard v. Butte, 25 Mont. 410, 65 Pac. 425.
Thus, there was sufficient evidence bearing upon the question of negligence of the city to make the testimony criticised under this assignment of error competent. There being evidence tending to establish negligence at the particular place, testimony tending to show that no other such defect existed in the same, or any other sidewalk of the city, became competent for reasons hereinbefore stated. The court did not err in admitting it.
It is urged that the court erred in refusing to give the following requested instruction:
“You are instructed that Dr. James Shannon and Dr. O. W. Sharpless are physicians who were appointed by this court as a commission to examine the plaintiff Christina D. Smith with reference to the extent and nature of her injuries. They are witnesses neither in behalf of the plaintiffs or the defendant, and this fact you may take into consideration in determining their credibility, interest, or lack of interest, in the result of this suit, and the weight to be attached to their testimony.”
We think the instruction was properly refused. While it is true that the physicians named had been appointed by the court to examine the injured respondent, yet they
It is unnecessary to discuss the assignment that error was committed in overruling the motion for a new trial. Ho claim is made in this court that the verdict is excessive, and other questions involved in the motion for a new trial, which have been urged here, have already been sufficiently discussed.
The judgment is affirmed.
Fullertor, O. J., and Arders, Mourt, and Durbar, JJ., concur.