Bennett v. Seattle Electric Co.

Gose, J. This action, instituted by the widow and minor children-of David Sullivan, deceased, to recover damages for his death, which it is alleged was caused by the negligence of the appellant, terminated in a verdict and judgment for the plaintiffs, from which the defendant prosecutes this appeal. During the pendency of the case the widow remarried. The case has been before this court on two former appeals, where a full statement of the facts will be found. Sullivan v. Seattle Elec. Co., 44 Wash. 53, 86 Pac. 786; Id.,Id., 51 Wash. 71, 97 Pac. 1109. In brief, the charge of negligence is that David Sullivan, in the nighttime, and when in a drunken and helpless physical condition, entered upon one of the street cars of the appellant, it being a common carrier of passengers, as a passenger, and paid his fare; that his condition was known to the appellant; that when the car was on the trestle work and bridge along the shore of Lake Union, the night being dark and there being no sufficient lights and at a dangerous place, as the appellant well knew, it negligently allowed him to alight from the car upon the trestle work and bridge, there being no guards or rails at that place, and that he fell through the trestle work into the water of the lake and was immediately drowned. On the first appeal we stated the rule to be “that a carrier owes to the passenger a duty commensurate with his condition,” and that after it receives a passenger who is helpless or incapacitated, it must exercise toward him that degree of care necessary co keep him from harm.” On the second appeal we thus defined the issues: “The issues in this case are, first, was the deceased intoxicated; second, did the servants of the appellant have — 409 — actual notice of his condition; third, was the place where the deceased was permitted to alight from the car a reasonably safe place to land a person in his condition; and fourth, was the act of the appellant or its servants in suffering and permitting the deceased to leave the car at that particular time and place and in his then condition the natural and proximate cause of his death. If the jury should find all of these issues in favor of the respondents they would be entitled to a verdict, and the mere fact that the deceased fell into the lake from the platform or trestle by reason of his intoxication — if he did so fall — would not of itself preclude a recovery, as the appellant was bound to anticipate such negligence on his part.” The evidence tends to show, that the deceased was received as a passenger on one of the appellant’s cars when in such a state of intoxication as to be incapable of taking care of himself; that he was permitted to alight, either upon the trestle along the shore of Lake Union, upon a dark night, where there were no guards or barriers, or at a point a few feet distant upon the platform at Hinckley station, where there were no guards or barriers where the car entered or left the platform; that the water at that point was about twenty-six feet deep, and about five days later his body was taken out of the lake at a point a few feet from the south entrance of the car line to the platform; that the car upon which he was riding was traveling toward the north, and that his death was caused by drowning. Numerous errors are assigned, but most of the questions sought to be raised were decided adversely to the appellant on the former appeals. It is first urged that the respondents were not entitled to recover, for the reasons (1) that it was not shown that the place where deceased got off the car was not a reasonably safe place for one in his condition to alight, (2) that he was guilty of contributory negligence, and (S) that it is impossible to determine from the evidence the actual cause of his death. These questions were raised, first, by a motion — 410 — for a directed verdict, and, second, by a motion for a judgment non obstante. That these were questions of mixed law and fact was settled in the former appeals. There was, as we' have seen, evidence tending to show that the place where the deceased got off was not a reasonably safe place for a drunken man to alight. We cannot usurp the functions of the jury and say that the preponderance of the evidence was against their conclusion. Had the writer been a juror he would have reached a conclusion different from that found by the jury on that question, but that does not authorize us to overrule their verdict. The jury is the tribunal designated by the constitution to try such questions, and when their verdict is based upon competent testimony, and is free from passion and prejudice, the court will not overrule their determination upon a pure question of fact. The evidence is conclusive that the deceased came to his death by drowning.' No bruises were found upon the body. It was taken out of the water within a few feet of the place at which at least two of the witnesses testified he alighted from the car, and within a few feet of the south side of the platform. There is no evidence that he was ever seen alive after the car left the platform. The law has taken human life upon less evidence of the corpus delicti. On the first appeal we said that the appellant owed the deceased a duty commensurate with his condition. The corollary of this rule must be that, his duty to care for his own safety should be measured by his condition as to sobriety. Price v. St. Louis etc, R. Co., 75 Ark. 479, 88 S. W. 575, 112 Am. St. 79. As we shall see, the jury were properly instructed upon the question of his negligence. A witness for the respondent was permitted to premise his testimony with the statement that he was a county assessor at the time of the accident, which he later corrected by saying that he was then a deputy assessor. This is assigned as error, on the ground that evidence of the good reputation of a witness cannot be given until his reputation has been as — 411 — sailed. We think the objection is without merit. The question was the usual one in the introduction of a witness to the jury. It only incidentally touched his reputation. It is true, as argued by the appellant, that evidence as to the good reputation of a witness cannot be given until his reputation has been attacked. But the evidence to which the objection is raised does not fall within the rule. Rules of evidence are to be applied, not to thwart, but to aid in, the administration of justice. While a witness was examining a photograph of Hinckley station, counsel for appellant stated, “These timbers have been put on since.” This is urged as error. It frequently happens in the trial of a cause that counsel will make some remark not strictly within the record. If all such cases were reversed, finality in a lawsuit would be more of a hope than a reality. We must credit the jui'y with the possession of common sense and assume, when questions like this are i'aised, that they distinguished between the sworn testimony of the witness and the casual remark of counsel. The court instructed the jury as follows: “A common carrier of passengers is required under the law to exercise towards its passengers the highest degree of care and prudence practicably consistent with the operation of its road in the carrying of persons and in letting them on and off its cars.” It is urged that this instruction was inapplicable to the issues, and hence erroneous. There was no error in the instruction. Error is assigned in the refusal of the court to give certain proposed instructions. In so far as they correctly stated the law as announced in the former appeals, they were given in substance but in a somewhat different phraseology. The court in effect instructed the jury that the appellant was not required to receive a drunken passenger when unattended, but that if it did receive the deceased in a drunken condition, and had actual knowledge that he was so intoxicated as to — 412 — be incapable of taking care of himself, it was required to exercise towards him care commensurate with his condition; that the mere happening of an accident does not raise the presumption of negligence; that the appellant was not an insurer of the safety of its passengers; that when one becomes a passenger upon a car of a common carrier of passengers, he continues to be a passenger until such time as he has safely alighted from the car in a reasonably safe place; that the appellant could not lawfully put the deceased off the car or permit him to get off at a place where there was danger of his perishing or coming to harm, even though such place would be reasonably safe for one in a normal condition; that if the jury should find from the evidence that the deceased was in such a state of intoxication that it was dangerous to let him off the car at the station known as Hinckley station, or upon the trestle along the shore of the lake, and the appellant knew that it was unsafe for him to be let off the car, where the jury should find from the evidence he was let off, then it would be guilty of negligence; and that if the jury further found that by reason of such negligence the deceased fell into the water of .the lake and was drowned, the respondent would be entitled to a verdict, unless the deceased failed to exercise that degree of care for his own safety which a person in his then condition would ordinarily use under like circumstances. The court then summarized the issues by reading from this case, Sullivan v. Seattle Elec. Co., supra, the language we have quoted. It is finally contended that the court erred in entering judgment for two statutory attorney’s fees of $15 each. Our code, Bal. Code, § 5172, provides that “when allowed to either party costs to be called the attorney’s fee shall be as follows: . . . In all actions where judgment is rendered after impaneling a jury, $15.” The statute has reference to the judgment which finally determines the cause, and it seems clear that but one attorney’s fee can be taxed as costs regardless of the number of trials. The respondents have cited — 413 — Williams v. Morrison, 32 Fed. 682, as supporting their right to have two attorney’s fees taxed as costs. In that case the court construed § 824 of the U. S. Revised Statutes, which allows a docket fee as costs “on a trial before a jury”; whilst as we have seen, our statute only authorizes the fee “where a judgment is rendered.” In an action at law the court can impose no costs by way of attorney’s fees except such as are expressly authorized by statute. Larson v. Winder, 14 Wash. 647, 45 Pac. 815. The case will be remanded with directions to the trial court to modify the judgment to the extent of allowing but one statutory attorney’s fee as costs. In all other respects the judgment will be affirmed. Neither party will recover costs. Rudicin, C. J., and Fullerton, J., concur.