113 Wash. 476 | Wash. | 1920
The purpose of this action was to recover for personal injuries and damages to an automobile. After the issues were framed, the cause was tried to the court and a jury, and resulted in a verdict in the sum of $1,727.50. Within the time required by law, the defendant moved for a judgment notwithstanding the verdict, and subsequently made a motion for a new trial. These motions were both overruled by the trial court and a judgment entered upon the verdict. The defendant appeals.
On August 22, 1909, at the intersection of East Union street, Twelfth avenue and Madison streets, in the city of Seattle, an automobile driven by an employee of the appellant struck an automobile driven by the respondent. East Union street runs approximately east and west, and is intersected at right angles
The evidence is in conflict as to the speed of the respective cars and also as to which car first reached the intersection. The collision occurred on the south side of Union street, not far from the east curb line of Twelfth avenue. The respondent sustained serious personal injuries; the automobile which he was driving was damaged to a considerable extent. The plaintiff charged that the appellant was guilty of negligence in that his automobile was being driven at an excessive rate of speed, and also that the automobile was being-propelled at a greater rate of speed than was permitted by the city ordinances and by the state statute. The appellant denied the charges of. negligence, and plead affirmatively that the respondent had been guilty of contributory negligence which caused the accident.
Upon the trial, the respondent introduced in evidence, to which there was no objection, certain repair bills. Subsequently he sought to establish the amount .of damage to the automobile by showing the difference between its value before and after the accident. This testimony was objected to by the appellant, claiming that, by putting in evidence the repair bills, the respondent had waived his right to prove damage in any other matter. This is the first point made in the briefs.
The fact that the repair bills were introduced in evidence without objection would not constitute an election, or a waiver on the part of the respondent of his right to prove the legal measure of damage which his
It is next contended that the trial court erred in not entering a judgment notwithstanding the verdict. The evidence, as already stated, upon the question of speed and which automobile first arrived at the intersection was conflicting. It appears that the driver of the appellant’s car, as he approached the intersection, intended to turn south on Twelfth avenue. In making this turn he did not go around the point of intersection of the streets, but did what is referred to as “cut the corner.” Whether he was justified in doing this under the exigencies of the situation was a question for the jury.
If we have gathered the appellant’s argument correctly, the claim is that, since there was no controversy over the width of the streets, their condition, or the grades, these facts, taken in connection with the respondent’s testimony, were such as to require the granting of the motion for judgment notwithstanding the verdict. The argument seems to be that, with these conceded or undisputed facts and with the appellant’s automobile going at the speed respondent claimed, the latter could, by accelerating his speed, have avoided the accident. We think, however, that the court would not be justified in supporting this theory and overturning the verdict of the jury. There was substantial evidence upon which the verdict could rest.
The further assignments of error to be noticed relate to the instructions. In instruction 9, the jury were told that, if they should “find” by a preponderance of the evidence that the respondent received his
In instruction 12, where the measure of damages was defined, the jury were told that, in ascertaining the damages
“ ... all the consequences of the injury, future as well, as past, are to be taken into consideration, including loss of time or capacity to work, if any, damage to car, if any, and bodily pain and suffering, reasonable doctor’s bills, if any has been proven, bodily in7 convenience, as mental disturbances if shown, and such sum awarded, if any, as will reasonably compensate the plaintiff for his injury. You will readily understand there is no exact legal standard by which to measure damagés for pain and suffering or mental distraction, and upon these questions the jury must exercise its own good judgment and sound common sense based upon the evidence in the case.”
In instruction 13, the jury was told that the measure of damages for injury to the car, if any, would be the decrease in the fair market value thereof. In other Avords, “the difference in the value immediately preceding and immediately folloAving the collision, if there was any. ”' In this instruction, it was stated that the repair bills Avhich had been received in evidence might be taken into consideration by the jury in determining whether or not there was a decrease in the value of the car by reason of the collision, and if so in determining the amount thereof. The first part of the instruction stated the correct measure of damages. The evidence
The judgment will be affirmed.
Holcomb, C. J., Mount, Mitchell, and Tolman, JJ., concur.