63 Wash. 476 | Wash. | 1911
Lead Opinion
This action was commenced by the plaintiffs to recover damages for personal injuries, which they allege resulted to the plaintiff Annie E. Morgan. from the negligence of the defendant in the • operation of the elevator in its building in Tacoma while she was a passenger thereon. Issue being joined by the pleadings as to the defendant’s negligence, a trial was had, resulting in a verdict and judgment in favor of the defendant. The plaintiffs moved for a new trial, which was overruled, and thereupon appealed from the judgment and the order overruling the motion.
It seems to us that, in the absence of the evidence upon which the verdict and judgment were rendered, we are unable to say that such disposition of the cause was erroneous. It may be that the evidence was such that respondent was entitled to a verdict and judgment in its favor as a matter of law, and that the court would upon that ground have sustained a motion made by respondent for judgment in its favor notwithstanding the verdict, had the verdict been against it. Hence, the final disposition of the case may have been correct however erroneous the instructions may be which are here sought to be reviewed. The question of whether or not instructions brought before the court upon appeal, accompanied only by a record such as we have here, can be reviewed does hot appear to have heretofore been presented to this court. We think, however, that there have been some decisions by this court and the territorial court which, by
In the early case of Brown v. Forest, 1 Wash. Ter. 201, the court said:
“Every plaintiff in error brings up for trial the decision of the court below, and assumes the burden of showing that it was erroneous. In his precipe he is required to state the chai’ges he makes against it. The precipe herein is not very clear in its assignment, but we shall consider it as charging error in the giving of the instruction which is set out in the bill of exceptions. On the rectitude of that instruction we are under no obligation to decide; because the plaintiff in error has not shown that he was prejudiced thereby, even if it were wrong. All the instructions given in a case are to be taken together, for one may so modify another that what seems wrong, if taken alone, may, considered with the rest, constitute the correct law of the case; so that he who would have the law of his case reviewed must bring here all of it, or need bring none. This plaintiff in error has not done this, and so we cannot say whether the rulings in his case.were law or not. His bill of exceptions produces some law that was given, but does not state that such was all that was given; even if that produced was incorrect, we would not therefore contravene the presumption which goes in favor of the rectitude of the decision below, but would rather presume, in the absence of a showing to the contrary, that further instructions were given which corrected that stated in the bill.”
See, also, Thompson v. Territory, 1 Wash. Ter. 547; Oregon R. & Nav. Co. v. Galliher, 2 Wash. Ter. 70, 3 Pac. 615.
If the appellate court will indulge the presumption that other instructions may have been given than the ones claimed to be erroneous, rendering the giving of them at most harmless error, when such instructions are brought before it by a record which does not affirmatively show that they were all that were given, upon the same principle, we should here presume that the final disposition of this case was correct, notwithstanding the erroneous instructions brought before us,
“The appellants assign as error the action of the court in rendering judgment in excess of the verdict. Inasmuch, however, as they have not brought up with their appeal either a statement of facts or bill of exceptions showing the circumstances under which the judgment was rendered, it is manifest that this question is not here for review. It is not error in every instance and under all circumstances for a court to enter a judgment in excess of a verdict; hence, before the appellate court can say it is error so to do in any particular case, sufficient facts must be shown to make it appear that the action of the court is unwarranted in that particular case. Error is never presumed. The record must show it affirmatively.”
This court has recognized and followed the familiar rule that a verdict and judgment to which the successful party is entitled as a matter of law under the evidence will not be reversed because of erroneous instructions given to the jury. In Davis v. Gilliam, 14 Wash. 206, 44 Pac. 119, the court said:
“It is a familiar rule that a good verdict cures all errors and irregularities in the proceedings, and that errors growing out of a charge are always to be disregarded when ‘the verdict is so plainly in accordance with the evidence that it follows as a mere conclusion of law thereon.’ Thompson, Trials, § 2403.”
See, also, Secor v. Oregon Imp. Co., 15 Wash. 35, 45 Pac. 654; Kellogg v. Cook, 18 Wash. 516, 52 Pac. 233.
We have not overlooked the presumption of prejudice which generally follows an erroneous ruling by the trial court. This, however, is only a presumption resting alone upon the ruling itself, and may be overcome by something else occurring in the cause. In Collett v. Northern Pac. R. Co., 23 Wash. 600, 63 Pac. 225, it is said:
“The litigant has a right to have his case tried in a legal manner, and his legal rights protected by the court, and,*481 when a legal right is invaded or denied by the court, the rule which has often been announced by this court, and which we think is universal, is to the effect that, error having been committed, it will be presumed to be prejudicial error, unless it affirmatively appears from the record that it was not prejudicial.”
In Gray v. Washington Water Power Co., 30 Wash. 665, 71 Pac. 206, the court observed:
“An appellate court will not be justified in reversing a judgment where an error has been committed if it further appears from the whole record that such error is immaterial, or, in other words, if the record, as a whole, overcomes the presumption of prejudice which is established by the commission of error, and shows affirmatively that no substantial rights of the appellant have been injuriously affected.”
We are led to conclude that, in the absence of the evidence upon which the verdict and judgment were rendered, the presumptions in support of the judgment overcome the presumption of prejudice arising from erroneous instructions in this case, assuming for argument’s sake only, that the instructions complained of do not correctly state the law.
The judgment is affirmed.
Dunbar, C. J., Mount, and Fullerton, JJ., concur.
Dissenting Opinion
(dissenting) — I think the instructions in this case are clearly erroneous. Introductory to the seventh instruction, the court said:
“In the operation of elevators in buildings such as that owned by the defendant Bankers Trust Company, the defendant has the right to assume that individuals using such passenger elevators and transacting business in such buildings are individuals in the usual and accustomed bodily health and strength.”
A part of the tenth instruction is in the following language :
“The defendant cannot be convicted of negligence in stopping so suddenly that a jar or recoil may or may not occur,*482 nor can the defendant be convicted of any negligence in stopping an elevator in its building so suddenly and with such a jar as would not adversely affect the health of a person in a normal condition of health and strength. Accordingly, if you find from the evidence in this case that had a person in a normal condition of health and strength been in said elevator with said operator at the time plaintiff alleges she was injured, and if such person in a normal condition of health and strength would not have in any manner been hurt or injured by the manner in which it was stopped, then your verdict in this case should be for the defendant, even though you believe that the plaintiff might have received a shock that resulted in injury to her by and through the manner in which the elevator was handled by said operator, provided, any condition of bodily infirmity of the plaintiff was unknown to the operator of the elevator.”
We excerpt from the respondent’s brief the following pertinent language:
“Judging from the pleadings and the suggestions contained in the instructions, the case is one where a neurasthenic woman went into an elevator for the purpose of being transported, and while being so transported for her accommodation and to enable her to leave the elevator at a certain floor, the operator of the elevator stopped it suddenly and caused a recoil of several inches, which produced a slight jar which she claimed caused permanent and serious injuries.”
The applicable principle of law is stated in 6 Cyc. 598, as follows:
“The general rule as to the duty to care for the safety of its passengers is applicable in case of passengers who are suffering from some infirmity or disability. And certainly this is true, even if the servants of the carrier have no knowledge or reason to believe that the passenger is laboring under a disability. But the servants are presumed to know that persons in feeble health- may be passengers, and if such persons are injured by negligence in operating the train, they are entitled to recover, even though the injury would not have happened to a person in sound health.”
I therefore dissent.