275 P. 559 | Wash. | 1929
This action was brought to recover for personal injuries sustained in the collision of plaintiff's automobile with the defendant's passenger bus. The case was tried to the court and a jury, and resulted in a verdict against the defendant. Motion for a new trial was overruled, and from a judgment on the verdict, the defendant appealed.
On August 8, 1925, about five-thirty o'clock in the afternoon, the respondents (husband and wife) and their minor son were driving a Ford bug owned by the respondent marital community, and at the time being operated by the husband, along the Pacific highway (also known as the "Mountain road"), in a southerly direction a short distance east of Spanaway, and about eight miles south of Tacoma, in Pierce county. Respondents testified that, while their car was traveling about twenty-five miles an hour on the extreme right edge of the pavement, a passenger bus or auto stage, owned by the defendant, was proceeding in the same direction at approximately thirty-five miles an hour, and that, without giving any signal indicative of such intention, appellant attempted to pass respondents, crowding the Ford bug to the right and off the pavement. The appellants, to avoid collision with a northbound automobile which was from fifty feet to one hundred yards south of the cars of respondents and appellant, dropped back, swinging towards respondents' car. The right hand bumper of the bus locked in front of the gas tank near the left rear wheel of the respondents' car, which was thrown across the pavement in front of the bus and completely wrecked. Mrs. Pylate was rendered unconscious, and her left arm was broken. Her son and husband escaped with *247 minor injuries. In one particular, the evidence is not in conflict: that is, that, at the point where the accident occurred and about one mile to the south thereof, a clear view is afforded, as the highway is straight and free from curves.
The testimony of appellant's bus driver and of seven other witnesses who were passengers on the bus, was substantially that the bus twice failed in endeavoring to pass the Ford bug, but that the third time it was successful. The respondents then drove their car around to the right of the bus, traveling on the dirt and gravel portion of the highway, swerved to the left, and drove on the pavement in front of the bus thus causing the collision. All of appellant's witnesses testified that the bus driver sounded his horn each time he essayed to pass the respondents' car, and that they did not, at any time, observe an automobile approaching from the south.
[1] Appellant first complains that the court erred in admitting evidence in rebuttal which should have been introduced in chief. After the close of the evidence for the defense, the court permitted, over the objection of appellant, Cecil and William Weber to testify in rebuttal. Summarized, their testimony was that, when the accident occurred, they were in front of their garage, west of the highway, at a point from one hundred to fifteen hundred feet distant from the scene of the collision. The bus attempted to pass the bug, crowding the latter off the pavement to the right, when a northbound Ford touring car was one hundred and fifty to two hundred feet south of the cars of respondents and appellant. In withdrawing or falling back, the bus became attached to some part of the bug and wrecked it.
Appellant directs attention to our statute defining the manner of conducting trials: *248
"(2) The plaintiff, or the party upon whom rests the burden of proof in the whole action, must first produce his evidence; the adverse party will then produce his evidence.
"(3) The parties then will be confined to rebuttal evidence, unless the court shall consider that justice requires that evidence in the original case may then be offered." Rem. Comp. Stat., § 339.
This statute doubtless vests in the trial court a large discretion in the matter of admitting evidence out of order. Appellant was permitted to introduce testimony in reply to the testimony of the Weber brothers. Had appellant claimed surprise arising from unexpected testimony, and timely moved for a continuance in order to produce evidence to meet the emergency, a different question might have been presented. The testimony of the Webers was merely cumulative, and we can not hold that it was prejudicial. Both respondents testified in chief to the same facts, and eight witnesses for appellant postively contradicted that testimony.
In Cogswell v. West St. N.E. Elec. R. Co.,
A case will not be reversed for allowing evidence in rebuttal that might have been introduced in chief, except on the plainest abuse of discretion, and where appellant is not permitted to introduce evidence in reply thereto. Bellingham v. Linck,
[3] The second ground on which the motion for a new trial was based, was that the verdict was against the weight of the evidence, and that the court was satisfied of such fact. In addressing himself to this phase of the motion for a new trial, counsel for appellant directed the attention of the trial court to the case of Stickney v. Congdon,
". . . that to do so and cause a re-trial would result in the same testimony again, and again he would be called on to grant a new trial."
We observe, however, that the trial court did not state that substantial justice had not been done between the parties.
We said in Ziomko v. Puget Sound Elec. R.,
"In passing upon the motion for a new trial, the trial judge, while he denied the motion, expressed the opinion that the verdict was contrary to his view of the weight of the evidence. The appellant argues that, having this view of the evidence, it was his imperative duty to grant a new trial, and that this court must hold that it was an abuse of discretion on his part not to do so. Our cases on this question, it must be confessed, are not consistent. The cases which most directly support the contention are Tacoma v. Tacoma Light Water Co.,
The case of Stickney v. Congdon, supra, is not out of harmony with that view. A careful examination we have made of the evidence brought here in the statement of facts discloses that the verdict is supported by substantial evidence.
[4] Finally, it is contended that the verdict of $2,300 is excessive. The evidence discloses that Mr. Pylate's injuries, while minor, were such that he was unable to work for two weeks. Mrs. Pylate sustained a comminuted fracture of the left upper arm. She was confined to the hospital for three days, and given *251 treatment in the operating department of the hospital for two months. For a year she was unable to perform her housework. At the time of the trial, which was more than two years after the injury, she still complained of pain, and testified that she had not fully regained the use of the broken arm. The physician who attended Mrs. Pylate testified that, while he did not find any deformity,
". . . there is some little loss of acromion angle. . . . Instead of the arm going out as it normally does, it tends to go together in a straight line."
The injury doubtless entailed at the time severe pain and suffering, and if Mrs. Pylate is to be believed, she still suffers considerable pain and inconvenience.
There is nothing in the record to indicate that the jury was actuated by passion and prejudice in returning a verdict for the amount it did; therefore we will not interefere with it.
The judgment is affirmed.
MITCHELL, C.J., FRENCH, PARKER, TOLMAN, BEALS, and MAIN, JJ., concur.
HOLCOMB, J., concurs in the result. *252
