Ingersoll v. Olwell

Mackintosh, J. On a Sunday afternoon in October, 1922, in the Cascade mountains, near a curve on the Sunset Highway, an automobile called a “hug,” driven by the respondent, collided with a Dodge automobile driven by the appellant, and one of the results was this lawsuit, in which the jury returned a verdict in [277] favor of the respondent for $2,000 in compensation for Ms injuries. The court’s denial of the appellant’s motion for a new trial and its rendering of judgment in favor of the respondent are alleged to he erroneous, for the reason that the evidence was insufficient to justify the verdict. As is usual in cases of this nature, the eye-witnesses, after detailing their presence and opportunity to have seen everything that transpired, proceeded to deny the accuracy of each other’s vision, and thus raised a question which the jury alone is competent to decide. It is alleged here, however, that the accuracy of the appellant’s witnesses must he accepted as a matter of law, for the reason that it is corroborated by certain exhibits introduced by the appellant consisting of photographs which demonstrate that the accident could not have occurred as testified to by the respondent’s witnesses, under what are called “well known laws of physics.” The trouble here is that the testimony is again in conflict and the accuracy of the photographs is not conclusively established, and once more a question of fact arises which the jury alone is competent to determine. There was introduced on behalf of the respondent a map showing the location of the road and curve. It is objected that the reception of tMs map in evidence as an exhibit was erroneous, for the reason that it is not accurate and that there appear upon it representations as to the location of the car, and it is not shown who had prepared the map. It is admitted that the map is not drawn to scale, and its admission was allowed for the mere purpose of illustrating the testimony of the witnesses and to give the jury a general idea of the situation, and the jury was made aware of the fact that the map was not accurate and that it was only introduced as an aid to it in understanding the testi [278] mony of the witnesses. We find no error in this. Deitchler v. Ball, 99 Wash. 483, 170 Pac. 123. The next error alleged is that the court instructed the jury that it might take into consideration in arriving at the amount of the verdict to which respondent might he entitled “loss of salary, if any.” The objection to this instruction is that the jury thereby was allowed to assess damages for the loss of salary which accrued after the date of the filing of the original complaint, and that, in order to entitle the respondent to such a recovery, it would be necessary for him to file a supplemental pleading showing facts which occurred subsequent to the filing of the original complaint and up to the time of the trial. Though it may be that the loss of wages is a special damage and cannot be proved unless specially pleaded, an examination of the complaint shows that it claimed such special damages, and does not confine them to such as may have accrued at the time of the filing of the complaint. The complaint alleged that, by reason of his injuries, the plaintiff had been incapacitated from that time until the time the pleading was prepared, and “will be incapable for a long time to come, and will never again be able to perform the duties of a city fireman, which was his occupation in the past, and that he has lost his wages since that time, and wall lose his wages for a considerable time, and, in fact, will never again be able to resume his occupation and be able to earn the salary he was able to earn before.” We fail to see how any supplemental pleading could have added any more information than this original complaint already had, nor more clearly present a claim for loss of wages from the time of the injury up to the time of the trial. Smelser v. Barnes, 125 Wash. 126, 215 Pac. 369. Objection is also made to the giving of an instruction which embodied the respondent’s theory of the appel279 laxit’s legal liability. As we understand tbe appellant’s contention in this regard, it is not that tbe instruction in itself is erroneous or misstates tbe law, but tbe argument, in effect, is that tbe court, having given a proper instruction upon tbe respondent’s theory of tbe case somewhat elaborately, should also have given an equally elaborate instruction upon tbe appellant’s theory, although no specific instruction of that kind was asked of tbe court. We do not feel that there is any merit in this objection. Tbe last error assigned is that tbe court refused to give tbe appellant’s first requested instruction. But in answer to this assignment it appears that tbe substance of tbe instruction was fully given by tbe court; and, in tbe second place, that tbe instruction itself was not a complete statement of tbe law applicable to tbe situation, for though it properly stated that tbe driver of a car would be guilty of negligence if, at tbe time of tbe accident, be was on tbe wrong side of tbe road, yet it does not follow, as tbe instruction states, that a person so violating tbe law could not recover, for be might still recover if tbe jury should find that tbe violation of tbe rules of tbe road was not tbe proximate cause of tbe injury. For these reasons tbe court was not in error in failing to give tbe requested instruction. Finding no error, tbe judgment is affirmed. Main, C. J., Parker, Holcomb, and Tolman, JJ., concur.