112 Wash. 426 | Wash. | 1920
This is an appeal from a judgment entered in favor.of the respondent and against the appellant in an action brought to recover for personal injuries. As in all such cases, there are in the record certain facts which are not in dispute. The appellant owns and operates an interurban railway between the city of Seattle and the city of Kenton. As the passenger trains of the appellant leave Seattle, they are operated in the usual way until they enter Main street m Kenton. At this point the trains are switched onto a wye, where they are turned and brought back to the main track, and from thence they are backed to the terminal depot in Kenton, a distance of some four hundred or five hundred feet. Main street is paved between the wye and the terminal depot. The street between these points extends north and south. The, •pavement is fifteen 'and five-tenths feet in width between the east rail of the appellant’s railway track and its outer edge, at which place it terminates with the usual curb. The accident out of which the controversy arises happened shortly prior to six o’clock in the evening of September 11, 1916, at a place between the wye and the depot. The respondent at that time was riding in a two-wheeled cart drawn by a single •horse.
The evidence as to the manner and cause of the accident is divergent. The respondent’s version is that, at the time of the accident, he was driving from his ■home to the depot at Kenton for the purpose of meet
The appellant’s version of the happening of the accident is that, as its train approached the respondent, he was driving on the side of the track between it and the curb, leaving ample room for the train to pass
After the return of the verdict of the jury, and before judgment had been entered thereon, the appellant moved for judgment notwithstanding" the verdict, and, in the alternative, for a new trial. The trial court denied the motions, and the first error assigned is the refusal of the court to set aside the verdict and enter a judgment for the appellant.
■ In support of this assignment the appellant contends that the respondent was guilty of contributory negligence, as matter of law. The contention is based on the fact that the respondent turned his horse upon the railway tracks, when he reached the parked automobile, before looking for an approaching train. Many cases from this court are called to our attention where somewhat similar acts on the part of pedestrians and vehicle drivers were held to be so, and argue with force that respondent’s acts bring him within the rule. But we think it unnecessary to enter upon a review of the cases. Whether the court can say in a particular case the injured party was guilty of negligence, as matter of law, must depend upon the facts of the particular case. Precedents are usually but illustrative of the general principle, and are authoritative only where the facts are like or so far similar as to be indistinguishable. Here there was an element not found in the cited cases. It will be remembered that the respondent, while only a short distance from the place where he made the turn towards the tracks, and 'when he discovered that such a turn was going to be neces
Among the grounds upon which the motion for a new trial was based was the statutory ground of insufficiency of the evidence to justify the verdict, and it is urged that the trial court erred in refusing to grant a new trial on this ground. When the question of the sufficiency of the evidence to justify a verdict is presented to a trial court, that court is undoubtedly warranted, under our practice, in viewing the question from a two-fold aspect; that is to say, it may inquire whether the verdict is supported by evidence in kind or quantity such as the nature of the case requires, or it may inquire into the preponderance of the evidence, and grant or refuse to grant a new trial as its conclusions thereon dictate. While the rule is not the same in all jurisdictions, it is our rule that we will review a judgment founded on the verdict of a jury for insufficiency of the evidence only in a case of the first sort mentioned. If, for illustration, the trial court should enter a judgment upon the verdict of a jury founded on the testimony of one witness only where the law required two or required the witness to he corroborated, or should enter a judgment on a verdict founded on evidence of an oral contract where the
In passing upon the motion for a new trial, the trial judg’e, 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 con
The court gave to the jury the following instruction:
“The court instructs the jury that the defendant is liable in this case if its servants failed to use ordinary care to prevent the injury of the plaintiff after they became aware of the danger to which he was exposed, or after they might have become aware thereof by the exercise of ordinary care, and by ordinary care is meant such care as would be ordinarily used by prudent persons performing a like service under similar circumstances; and the court further instructs the jury that if they believe from the evidence that defendant’s conductor or motorman saw the plaintiff in time to avoid injury to him by using ordinary care, and that said conductor or motorman failed to use such care to prevent injury to the plaintiff, then the jury will find for the plaintiff.”
It is complained, further, that the instruction is erroneous in that it entirely wipes out the defenses of contributory and concurrent negligence, and places no duty on the part of the respondent to exercise care for his own safety. But the rule is that:
‘ ‘ Contributory negligence of a party injured will not defeat his action, if the defendant or its servants might*435 by reasonable care and prudence have discovered his peril in time to save him, and thus have avoided the consequences of the injured party’s negligence. In such a case the plaintiff’s alleged contributory negligence could not be said to be the direct and proximate cause of the accident, but the defendant’s negligence would be the proximate cause and would thus render it liable.” Nellis on Street Railways (2d ed.), §462. Locke v. Puget Sound Int. R. & P. Co., 100 Wash. 432, 171 Pac. 242, L. R. A. 1918 D 1119.
Complaint is made of the refusal of the court to give certain requested instructions. These we shall not review at length. Most, if not all of them, could have been properly given, but their substance, in so far as they were material, was embodied in the instructions actually given by the court. It is not the rule that every requested instruction which could be properly given must be given. If the jury are properly and fully instructed upon the controlling principles of law involved the rule is satisfied. Here the instructions were full and complete, and even if the requested instructions involved matters not within the given instructions, the refusal to give them was without prejudice, and hence without error.
In its charge to the jury the court, in stating the issues, recited the substance of the allegations of the complaint, and in the recital stated the items of damage the respondent alleged he had suffered by reason of his injury. Some of these items there was no evidence at all to substantiate, and others again were proven, if proven at all, only in part. The court was not requested and did not in its charge enumerate the-items which no evidence had been offered to sustain, but by instructions more or less general left it for the jury to say which of the items the evidence tended to establish and to what extent they were established
Finally, it is contended that the verdict is excessive. The amount of the recovery was $1,000. After the accident the respondent was found to have a rupture, which he claimed was the result of the injury and which he testified partially incapacitated him from performing his ordinary and customary labor. The respondent introduced expert evidence to the effect that it was highly improbable that the injury could have caused the rupture, and introduced evidence of his neighbors and acquaintances to the effect that he had performed his ordinary labor much as he was wont to do prior to his injury. But the evidence on all these questions was contradictory, and while it appears to us that the jury might well have found a lesser verdict, we cannot say their finding is so far in excess of a just finding as to warrant interference therewith.
The judgment is affirmed.
Holcomb, C. J., Mount, Tolman, and Bridges, JJ., concur.