109 Wash. 426 | Wash. | 1920
This was a suit for personal injuries. The complaint, in substance, alleged that, near the intersection of 21st and Junette streets, in Tacoma, Washington, the defendants negligently caused their automobile to run against and over the plaintiff, thereby injuring him. This location is in the residence portion of the city. The defendants denied negligence and set up contributory negligence as a cause of the injury. There was a verdict against the plaintiff and in favor of the defendants. The plaintiff asked for a new trial based upon the various statutory grounds. The court later made an order granting such new trial. The appeal is from that order.
We are met at the outset with the contention of respondent that the granting of a new trial is within the discretion of the trial court, and that this court will not interfere with the exercise of such discretion except for manifest abuse thereof. That such is the general rule in this state cannot be denied. Nordeen Iron Works v. Rucker, 83 Wash. 126, 145 Pac. 219; Snider v. Washington Water Power Co., 66 Wash. 598, 120 Pac. 88; Gardner v. Lovegren, 27 Wash. 356, 67 Pac. 615; Dunkle v. Spokane Falls & N. R. Co., 20
“Respondent invokes the familiar rule that a motion for a new trial is a matter addressed to- the discretion of the lower court and that the order of the court will not be disturbed unless the record discloses an abuse of discretion. But it will be observed in this case that the order was based upon the sole ground that the court committed error in denying plaintiff’s application to dismiss the action. This raises a clean cut legal proposition, not involving in its determination the exercise of any discretion, and there is nothing in the general rule which will prevent this court from reviewing the order.”
In the case of Gardner v. Lovegren, supra, this court said:
“It is true that the granting of a motion for a new trial is, in a certain sense, discretionary with the trial court; and, if it were upon matters of fact, the appellate court would hesitate to set aside an order made by*429 the trial court, unless it plainly appeared that the discretion was abused. But in the case at bar it is a pure question of law, and this court will act upon it independently and uncontrolled by the judgment of the lower court, as it would upon any other question of law which was brought to it upon appeal.”
But the respondent insists that, inasmuch as the order granting the new trial was a general one and did not designate the grounds upon which it was made, this court cannot tell whether the trial court acted in the exercise of its discretion or because of some supposed erroneous ruling involving purely legal propositions. We are convinced, however, that the record shows the grounds upon which the ■ court made its order for a new trial. The court was considering four propositions, as follows: (1) alleged misconduct of one or more of the jurors; (2) alleged misconduct of defendants’ attorneys in addressing the jury; (3) submitting to the jury certain special interrogatories without having given permission to plaintiff’s attorneys to argue thereupon; and (4) the giving by the court of its instruction No. 17. The record makes it plain that the trial court did not grant the motion for a new trial on- either of the first two grounds. The court said: “I think there was misconduct of the jury, but not very serious. ... I cannot bind the supreme court on what they will review. I do not think there was any misconduct of counsel, but I do not know what the supreme court might think.” Later the court made and filed in the cause a memorandum decision wherein it is stated that a new trial “is granted in this action for error in instruction No-. 17, presented by the defendants; also for misconduct of jury and error in the submitting of interrogatories. The last grounds standing alone would not require a new trial, but the error in instruc
The record shows that, at the close of the testimony, and before the court gave its instructions, and before the argument to the jury, defendants’ attorney, in open court, called the court’s attention to certain special interrogatories which he desired to have submitted to the jury. They were then handed to- the clerk and were by him filed in the cause. When the court instructed the jury, he did not make any mention of the special interrogatories. After the argument to the jury and immediately before it retired to deliberate on its verdict, the court informed it that he would send out to it four special interrogatories to be answered by it. This, it seems, was the first plaintiff’s attorneys had heard of any special interrogatories. They then, in the presence of the jury,- objected to the interrogatories or special findings because they were not submitted to the jury in time for, or prior to, argument. Nothing further seems to have been done or said in regard to these interrogatories, except they
“Any party may, when the evidence is closed, submit in distinct and concise propositions the conclusions of fact which he claims to be established, or the conclusions of law which he desires to be adjudged, or both. They may be written, and handed to the court, or, at the option of the court, oral, and entered in the judge’s minutes.”
It would appear that attorneys for defendants did everything the statute required of them. We have no doubt that plaintiff’s attorney had the right to argue these interrogatories to the jury, and if the court had refused such permission, it would probably have been error. Snider v. Washington Water Power Co., 66 Wash. 598, 120 Pac. 88; Pittsburgh, C., C. & St. L. R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033; Laffery v. United States Gypsum Co., 92 Kan. 475, 141 Pac. 241; Stacy v. Cook, 62 Kan. 50, 61 Pac. 399. However, the record fails to disclose any request by the plaintiff to be permitted to argue the interrogatories to the jury. Evidently the failure of the court to instruct the jury with reference to the interrogatories at the time of giving the general instructions was merely an inadvertence. We have no' doubt that the court would have granted such a request had it been made even after the general argument, but the failure to make it, we think, deprives the plaintiff of the privilege of now claiming error on that account.
But there is another reason why there was no prejudicial error in this regard. The jury found a general verdict for the defendants, and the answers to the
The giving of instruction No. 17 presents an interesting question. It is as follows:
“You are further instructed that at other places than at crossings the law places upon the pedestrian the necessity of continuous observation and avoidance of injury. ’ ’
The trial court concluded that this instruction did not state the law, and, chiefly for that reason, granted a new trial. Eespondents contend that this instruction invaded the province of the jury. Under ordinary circumstances, and in the absence of statute or local ordinance influencing or controlling the situation, we would be disposed to agree with this contention. This court has uniformly held that the care required of a plaintiff is measured by the care which would be taken, under like circumstances and conditions, by a reasonably prudent and careful man. Ordinarily, it should be left to the jury to- say whether or not, under the particular conditions existing, a plaintiff would be guilty of negligence if he did not constantly keep on the lookout for danger. The cases generally are to this effect. Graham v. Hagmann, 270 Ill. 252, 110 N. E. 337; Rump v. Woods, 50 Ind. App. 347, 98 N. E. 369; Beeman v. Puget Sound Traction, L. & P. Co., 79 Wash. 137, 139 Pac. 1087; Helliesen v. Seattle Electric Co., 56 Wash. 278, 105 Pac. 458; Minor v. Stevens,
The appellants, however, point ont that the words of instruction No. 17 were taken from the opinion of this court in the case of Johnson v. Johnson, 85 Wash. 18, 147 Pac. 649. In that case the court, in discussing the care required under an ordinance which gave the right of way to pedestrians at intersections of streets and the right of way elsewhere to automobiles, said:
“If the conceded right of way means anything at all, it puts the necessity of continuous observation and avoidance of injury upon the driver of the automobile when approaching a crossing, just as the necessity of the case puts the same higher degree of care upon the pedestrian at other places than at crossings.”
But the court used that language as applicable to the facts of that case. Circumstances may arise where the court may say, as a matter of law, that it would be the duty of the plaintiff in crossing the street to be constantly on the lookout to avoid danger.
But there is involved in this case an ordinance of the city of Tacoma, reading as follows:
“Pedestrians shall cross streets only at street intersections and places designated as cross walks, and at such points they shall have the right of way over all vehicles. Between street intersections and crossings vehicles, shall have the right of way.” Ordinance No. 6626, § 23.
This ordinance not only gives the right of way to vehicles between intersections of streets, but practi
Under the doctrine of these cases, and others which might be cited, it must be held that if the plaintiff, at the time of his injury, was crossing the street between intersections, he did so in violation of the ordinance we have quoted and was guilty of negligence as a matter of law. It would not, of course, necessarily follow from this that, in a case where the plaintiff admits
It follows from what has been said that the court erred in granting a new trial, and the cause is reversed and remanded with instructions to the lower court to set aside the order granting a new trial, and to enter judgment for defendants upon the verdict of the jury.
Holcomb, O. J., Tolman, Mount, and Fullerton, JJ., concur.