115 Wash. 566 | Wash. | 1921
This action was brought to recover damages for personal injuries, and for damages to an automobile, claimed to have been caused by negligence chargeable to the defendant. The cause was tried to the court and a jury and resulted in a verdict in favor of the. plaintiff. A motion for judgment notwithstanding the verdict was made and subsequently an alternative motion for a new trial. The trial court granted the motion for judgment notwithstanding the verdict and entered a judgment dismissing the action. Thereafter an order was entered reciting that in the event that there was an appeal, and it was decided that the granting of the motion for judgment notwithstanding the verdict was error, in that event the motion for new trial would be granted. The plaintiff appeals from the judgment dismissing the action, and attempts to prosecute an appeal from the order evidencing what the ruling of the trial judge would be upon the motion for new trial if that question would come properly before him.
In this case it is true that the evidence offered by the respondent tended to support a state of facts which were very different from those testified to by the appellant and his witnesses. In determining the correctness of the ruling upon motion for judgment notwithstanding the verdict, we cannot weigh the conflicting evidence but the decision of that question must rest upon the testimony favorable to the appellant. Under the facts supported by the evidence offered on behalf of the appellant it was error to grant a motion for judgment notwithstanding the verdict, as the question of contributory negligence was one for the jury.
As to the motion for a new trial, that question is not before us. It was not before the trial court when the order relative thereto was entered. The motion for judgment notwithstanding the verdict was sustained and a judgment of dismissal entered on the fifteenth day of July, 1920. The ruling on the motion for new trial was made subsequent thereto and on the fourth day of August, 1920. After the trial court had entered the judgment dismissing the action it had nothing further to do with the motion for new trial so long as that judgment stood.
The attempt to appeal from this order does not bring any question before this court. We are invited, how
There is another reason why we should not pass upon a motion for new trial at this time. The trial judge having granted motion for judgment notwithstanding the verdict and having dismissed the action gave no attention to the facts, of course, when ruling upon the motion for new trial, believing that error had been made in an instruction. It may he that when the question comes before him on the motion for new trial that it will he his view that the evidence is so greatly preponderous in favor of the respondent that he should exercise his discretion and grant a new trial for this reason.
The judgment will he reversed and the cause remanded with directions to the trial court to proceed in accordance with the views herein indicated.
Parker, C. J., Mitchell, Tolman, and Mount, JJ., concur.