20 Haw. 426 | Haw. | 1911
OPINION OP THE COURT BY
In this ease the plaintiff claimed damages against the defendant in the sum of $5048 for personal injuries sustained by him by reason of the alleged negligence of the defendant in the operation of one of its street cars. The jury rendered a verdict in plaintiff’s favor, assessing the damages at the sum of $548. At the close of the evidence the defendant moved for a directed verdict on the grounds that the evidence showed that the plaintiff himself was negligent and that the defendant was without negligence on its part. The motion was denied. The defendant excepted to the verdict- on the grounds that it was against the law and the evidence and against the weight of the evidence.
The plaintiff adduced testimony tending to show that on the afternoon of November 26th, 1909, he was driving an army escort wagon drawn by four mules on the way from Fort.Shafter to the Matson wharf, in Honolulu, and, when about two hundred yards north from the Palama fire station, on King street, the wagon which he was driving was run into by a street car operated by the defendant company; that at the time of the collision and for some time prior thereto-, the mules being on a trot, the wag'o-n was travelling parallel to- the car track, the left hand wheels being between one foot and two feet from the right hand car track; that the wagon was a heavy one and made considerable noise; that plaintiff heard no sound of a gong or other warning of the approach of the car which was overtaking the wagon, and was not aware of the presence of the car until, happening to look over towards his left, he saw it just as it came in contact with the wagon; the wagon was jolted and plaintiff was thrown from the seat to- the ground; and that plaintiff sustained injuries to his feet and other parts of his body. The testimony
The testimony adduced by the defendant came, principally, from two of its motormen, one of whom was operating the car and the .other was standing on the platform with him. Their testimony' tended to show that they first saw the plaintiff’s wagon when it was about three hundred 'or four hundred feet ahead of the car, travelling in the same direction; that plaintiff and his companion were apparently engaged in conversation; the power had been thrown off and the car was going at the rate of about seven miles an hour on a slight down grade with a slight curve to the track; that the gong was sounded, from the time that the wagon was, first seen until the collision took place; that the running board of the car projected two-and-one-half or three feet beyond the car track, and the wagon wheels were three or four feet from the track; that the speed was reduced till the car, when it had nearly reached a point abreast of the reai’ end of the wagon, was going at the rate of about four miles an hour; that at this point, both motormen being satisfied that there was room to pass, the power was increased to “five
As to the motion for judgment non obstante veredicto. The contention is made, and is supported by authority, that where specific acts of negligence are charged, and, not general negligence, the plaintiff is entitled to recover only upon proof of those specific acts. The argument, however, assumes that the case alleged by the plaintiff “is one of running the car at a fast rate onto the rear of plaintiff’s wagon, and in not giving plaintiff any warning.” This is har’dly a fair construction fi> put upon the plaintiff’s pleading. The third paragraph of the complaint alleges, inter alia, that “the defendant, did, then and there, wrongfully, negligently, and in utter disregard of the safety and rights of the plaintiff, and without sounding any alarm or giving any warning which the plaintiff could or did hear, run said car upon and against the easterly or left-hand hind wheel of said wagon with great force and violence.” Eliminating the parenthetical sentence in regard to the failure to give warning, it is definitely averred that the defendant did wrongfully and negligently and in utter disregard of the plaintiff’s rights, run its car against the wagon. That allegation was sufficient to put the defendant on its defense, and as, in our opinion, there was evidence to support it, the point sought to be made cannot be sustained.
The rights and obligations of persons using vehicles on the streets and of street railway companies operating cars on the same streets are mutual and reciprocal. Both are required to use due care to, avoid collisions. Dong Chong v. Rapid Transit Co., 16 Haw. 272. A street car cannot run down a vehicle from behind under ordinary circumstances without negligence or willful wrong. Richmond Passenger Co. v. Allen (Va.), 49 S. E. 656; Vincent v. Street Railway Co., 180 Mass. 104; Carrahar v. B. & N. Street Railway, supra.
The Dong Ghong case is much relied on by the defendant. In that case the court below had granted the defendant’s motion
As to the motion for a new trial. The trial judge was of the opinion, evidently, that there was not such a lack of evidence to support the plaintiff’s allegations as would justify the granting of the motion for judgment notwithstanding the verdict, but, he said, the verdict was “so decidedly against the weight of the evidence” that he felt obliged to grant the motion for a new trial.
It may be conceded that a trial court has the discretion, under some circumstances, to set aside a verdict and grant a new trial where it appears to the judge that the losing party has not had a fair trial; and that the exercise of that discretion would, not be interfered with by this court unless it appeared that the discretion had been abused. But the rule does not apply to a case where the only objection to a verdict is that it is against the weight of evidence, and" the judge believes it so to be, providing there was more than a mere scintilla of evidence to support the verdict. In a case where the verdict is supported by only a scintilla of evidence the trial court has the discretion to- grant a new trial or order the entry .of a judgment non obstcmte veredicto, as the circumstances may warrant. Where the evidence is clear and probably would not be different should the case be tried again the latter course would be appropriate.
In the case at bar the verdict was supported by more evidence than a mere scintilla.
In some jurisdictions the trial'courts are expressly authorized by statute to set aside verdicts and grant new trials “for insufficient evidence.” In those jurisdictions the trial judges
Our statute provides that the jury shall be the exclusive judges of the facts in all cases tried before them. R. L. Sec. 1198. In this jurisdiction it. is settled that a mere scintilla of evidence is insufficient to support a verdict. Smith v. Hamakua Mill Co., 14 Haw. 669; Wo Sing Co. v. Kwong Chong Wai Co., 16 Haw. 17. But it has often been held that, this court would not set aside a verdict where there was some evidence, i. e., more than a scintilla of evidence, to support it. In Kapiolani Estate v. Cleghorn, 14 Haw. 330, 338, Chief Justice Frear, speaking for the majority of the court, said, “On the whole, in our opinion, there was sufficient evidence to sustain the verdict whether the weight of the evidence was on that side or not.” See also, Kaleleonalani v. Trustees Lunalilo Estate, 4 Haw. 82, 88.
In connection with this branch of the case the defendant relies largely on Macfarlane v. Lowell, 9 Haw. 438. That was an action of assumpsit. The trial judge had granted a new trial on the ground that the verdict was, in his opinion, against the weight of the evidence. This court found that the testimony of the defendant, who was .the only witness for the defense, was “inconsistent and very indefinite,” and sustained the action of the trial judge. If the court intended to. hold that, in this jurisdiction, a trial judge is possessed of the discretion to set aside a verdict merely because he is of the opinion that; it is against the weight of the evidence, we must decline to. consider that case as a precedent to. be followed. Such, a ruling would be contrary to. the theory upon which the later case of Ahmi v. Cornwell was decided. In that case this court said, “It may be that the trial judge thought that the verdict should have been for the plaintiff, and it may also be that that view would find support in the evidence. That matter, however, was peculiarly one for the determination of the jury, and, clearly no sufficient cause appeared for disturbing its finding or verdict. The ex-
The defendant’s exception to the denial of its motion for judgment non obstante veredicto is overruled, and the plaintiff’s exception to the order setting the verdict aside and. granting a new trial is sustained. The case is remanded to the circuit court with instructions to set that order aside.