1 Reported in 156 P.2d 685. This action was brought by John A. Bennett and Sarah Ann Bennett, his wife, against the city of *Page 456 Seattle to recover damages for injuries sustained by Mrs. Bennett by reason of her having been struck by a bus, alleged to have been negligently operated by one of its employees. The jury before which the case was tried returned a verdict for the plaintiffs, and, from the judgment entered thereon, the defendant has taken an appeal. Mrs. Bennett will be referred to in this opinion as though she were the sole respondent.
The material facts presented to the jury were substantially as follows: East Marginal way was a public street within the limits of the city of Seattle and ran in an easterly and westerly direction. Sixteenth avenue south was also a public street and ran in a northerly and southerly direction. The part of Sixteenth avenue from Marginal way south to the Duwamish river bridge is involved in the case before us. At the trial it was stipulated as follows:
The Boeing Aircraft Company operated a plant devoted to the manufacture of airplanes for the use of the United States army, and it was located in the area south of east Marginal way and east of Sixteenth avenue south. There was an exit from the plant used by women employees and by which they reached Sixteenth avenue. There was no sidewalk along Sixteenth avenue from the exit to east Marginal way. The busses carrying employees from this part of the plant would line up along a wooden rail on Sixteenth *Page 457 avenue, a short distance from the exit. To the north of the exit was a space where employees parked their automobiles.
About three o'clock in the afternoon of February 24, 1943, a shift came off duty and a large number of the employees went on to Sixteenth avenue to enter either waiting busses or go to the parking lot. The respondent and another employee proceeded on foot north on the east side of Sixteenth avenue, intending to go to the parking lot. One of appellant's busses, traveling north on Sixteenth avenue, collided with the respondent, causing her to be injured.
There was some conflict in the testimony as to whether the bus ran against the respondent or she contacted it, but the jury accepted the respondent's version as to how the collision took place.
The assignments of error of appellant present two questions for the court to decide: (1) the effect, if any, of the action of the war department of the United States in closing Sixteenth avenue upon the application of Rem. Rev. Stat., Vol. 7A, § 6360-101 [P.C. § 2696-859]; and (2) whether the trial court erred in rejecting testimony claimed to be a part of the res gestae.
The Washington motor vehicle act, chapter 189 of the Laws of 1937, p. 835, Rem. Rev. Stat., Vol. 7A, § 6360-1 [P.C. § 2696-767], et seq., is a comprehensive enactment, prescribing among other things rights, obligations, and duties of users of the public highways. For the purposes of the act, a public highway is defined by § 1, subd. (qq), p. 841, Rem. Rev. Stat., Vol. 7A, § 6360-1, to be "Every way, lane, road, street, boulevard, and every way or place in the State of Washington open as a matter of right to public vehicular travel both inside and outside the limits of incorporated cities and towns."
By § 1, subd. (11), p. 840, Rem. Rev. Stat., Vol. 7A, § 6360-1, subd. (11), a pedestrian is defined to be "Any person afoot." *Page 458
Section 101, p. 904, of the act, Rem. Rev. Stat., Vol. 7A, § 6360-101, defines the duties of a pedestrian as follows:
"Pedestrians on any public highway where a sidewalk is provided shall proceed upon such sidewalk. Pedestrians on any public highway where no sidewalk is provided shall proceed on the extreme left-hand side of the roadway and upon meeting an oncoming vehicle shall step to their left and clear of the roadway."
It will thus be seen that, if the rule of the road just referred to was applicable to the situation disclosed, the respondent was negligent as a matter of law and that such negligence contributed to her injuries and was a proximate cause thereof.
The highway was closed to general public travel in December, 1941. Public authority acquiesced in the action taken by the army officers. The appellant does not question the right and power of the officers of the army to close the part of Sixteenth avenue from east Marginal way to the bridge to public travel and to admit into the closed area only such busses and automobiles of employees of the Boeing plant as they deemed advisable; but it contends that, notwithstanding this, such part of Sixteenth avenue did not cease to be a public highway and that the statutory rules of the road still applied.
[1] We think it is true that the highway did not cease to be such in the sense that the public easement was extinguished or that it was abandoned by the public or the municipality, or that the municipality or the county or state lost or surrendered jurisdiction over it. If a crime penalized by statute or ordinance had been committed in the enclosed area, the state or city still had the right to try and punish the offender. It was its use as a public highway that was changed. There had been a suspension of its use for public vehicular travel, and it was no longer "open as a matter of right" for such travel during such time as the war department kept its closure order in force.
Police regulations, like § 101 of the act, Rem. Rev. Stat., Vol. 7A, § 6360-101, are enacted for the safety of those having reciprocal rights in the use of public highways. If this *Page 459 statute is obeyed, the pedestrian is protected against vehicles coming behind him, and he has full opportunity to observe those he meets and to step aside and allow them to pass. But the use of a highway may be so changed that it is not only impracticable to observe such a rule of the road, but to do so would tend to increase the hazard.
When the various shifts changed, a large number of people surged back and forth in the area where the busses loaded and employees went to get their automobiles. Witnesses compared the situation to an active ant hill or what usually takes place at the close of a baseball game. If the respondent had attempted to obey the statute, she would have been obliged to have made her way through a crowd of people to get across to the west side of Sixteenth avenue, and, when she reached the parking area, would then cross to the east side. In view of the conditions existing, it was necessary for the driver of a bus slowly to work the bus through the pedestrian traffic until it had cleared the same.
Counsel for the respective parties informed us that they had not found any case adjudicating the question now before the court, and we have not been able to do so. Certain analogies have been suggested, but they do not fit the situation, and to discuss and attempt to apply them would confuse rather than clarify. The situation is a new and novel one, and we must resort to common-law principles of law to furnish a guide to the conduct of both parties to this case.
The action taken in closing the highway to public use did not infringe upon, or interfere with, the exercise of any prerogative of sovereignty or any governmental function of the state or its legal subdivisions. The appellant, in maintaining its streets, acts in a proprietary capacity, and it acquired no right in a statutory rule of conduct by a pedestrian on the highway that would prevent its temporary suspension when such became necessary or convenient by an exercise of a war power of the kind we are now considering.
We have reached the conclusion that the respondent was not negligent as a matter of law in walking north *Page 460 along the east side of Sixteenth avenue at the place and time she was injured, and that, in view of the change in use of the highway, her conduct must be measured by her common-law duty to have exercised ordinary and reasonable care for her own safety. The jury by its verdict found that she met this duty, and its verdict must be treated as conclusive.
[2] One of the witnesses called by appellant was Edna Hodges, one of the employees and a passenger on the bus. She was asked, "At, or immediately after, the impact, did you hear any remark made by a passenger on the bus?" An objection to the question was sustained by the court. An offer was made to prove by the witness that, at the time stated, she had heard a passenger on the bus exclaim, "`Why, that woman walked right into the bus,'" the theory of appellant being that the exclamation was a part of theres gestae. The court rejected the offer, being of the opinion that to permit the witness to repeat the exclamation would be relating "a statement of some third person to some conclusion arrived at at that time."
In Beck v. Dye, 200 Wn. 1, 92 P.2d 1113, 127 A.L.R. 1022, we set forth the tests which a statement or declaration must meet in order to be admitted as a part of the res gestae, and, without again repeating them here, it is our opinion that the proffered exclamation met those tests and that it was error to reject the offer of proof.
Evidence tending to establish the fact that the respondent, by her own act, collided with the bus was very material, and a new trial must be awarded if it may properly be said that the error was so prejudicial that, had the testimony been received, the jury probably would have returned a different verdict.
The testimony as to whether the bus swerved and struck the respondent or whether she swerved and walked against the bus was in direct conflict. When the driver of the bus was testifying, he said:
"I had moved ahead, as I said, one and a half bus lengths and I heard an impact on the side of the coach, a definite impact. Right at the second I paid no attention. Someone *Page 461 inside, along side me, someone rapped on the window. After that I heard a scream and someone stated someone had walked into the side of the bus and was hurt. All that was just like that, the impact, the scream and the remark, were all together."
We think it must be inferred that this witness was speaking of the same person that the witness Edna Hodges referred to.
[3] When an appellate court is considering a question of prejudicial error of the kind now before us, it must of necessity review all the evidence relating to that which the rejected testimony relates; and, if it appears from the record that the same, or substantially the same, evidence was given to the jury, then it can and should say that the error was not prejudicial. We have applied this rule many times, and the following are some of the cases: Brown v. Seattle, 57 Wn. 314, 106 P. 1113;Klodek v. May Creek Logging Co., 71 Wn. 573, 129 P. 99;Seattle, P.A. L.C.R. v. Land, 81 Wn. 206, 142 P. 680;Shilliam v. Newman, 94 Wn. 637, 162 P. 977; Bredemeyer v.Johnson, 179 Wn. 225, 36 P.2d 1062. These cases are factually different from the one before us, but they recognize the principle of law applicable to the question here involved.
It is argued by appellant that, as the witness who testified to the exclamation was the driver of the bus, he was an interested witness and the jury, in all probability, did not give his testimony the weight it would have given to the same statement coming from a disinterested witness, as was Edna Hodges.
We do not think this assumption can be indulged in by us to such an extent we should say that, had Edna Hodges been permitted to repeat the exclamation, the verdict would probably have been different. It appears to us from the record as a whole that the issue was presented to the jury with such fullness and clarity by both parties we cannot say that, had the proffered testimony been received, it probably would have changed the result, and we, therefore, conclude that the error was not so prejudicial as to warrant a reversal of the judgment. *Page 462
We are fortified in our conclusion by reason of §§ 307 and 1752 of Rem. Rev. Stat. [P.C. §§ 8340, 7336], by which we have been directed, when reviewing a case on appeal, to disregard all technicalities and consider the case on its merits; also, to disregard any error in the proceedings taken in the case which will not affect the substantial rights of a party. A refusal by a trial court to receive competent and material evidence may or may not affect a substantial right. It all depends upon the nature and character of the evidence and its bearing on the case viewed in its entirety. Each case must depend upon its own circumstances when the appellate court is called upon to determine the effect of an error in excluding evidence.
The judgment is affirmed.
BLAKE and MALLERY, JJ., concur.