Allen v. Walla Walla Valley Ry. Co.

• Decision Date: 18 May 1917
• Docket Number: 13799.
• Court: Washington Supreme Court
• Parties: ALLEN v. WALLA WALLA VALLEY RY. CO.

165 P. 99

96 Wash. 397

ALLEN v. WALLA WALLA VALLEY RY. CO.

No. 13799.

Supreme Court of Washington

May 18, 1917

Department 1. Appeal from Superior Court, Walla Walla County; Edward C Mills, Judge.

Consolidated actions by Bert Allen and another against the Walla Walla Valley Railway Company, a corporation. From judgment for the plaintiff named, defendant appeals. Affirmed.

Sharpstein Pedigo, Smith & Sharpstein, of Walla Walla, and John A Laing, of Portland, Or., for appellant.

Homer I. Watts, of Athena, Or., and W. H. Fouts, of Asotin, for respondent.

WEBSTER J.

This is an action to recover damages for personal injuries. Respondent at the time of the accident was riding in a buggy with his stepson Mike Pierce. The horse which was being driven by Pierce became frightened, ran away, and collided with one of appellant's street cars. Respondent and Pierce were both injured, and each brought an action for damages against appellant. By stipulation of the parties the actions were consolidated for the purpose of trial. The jury returned a verdict in favor of respondent for the sum of $1,000, but in the case in which Pierce was plaintiff found in favor of the railway company. Appellant's motion for judgment notwithstanding the verdict being denied and judgment having been entered upon the verdict, it brings the case here.

No errors are assigned based upon the admission or rejection of evidence, instructions given or refused by the court, or the insufficiency of the evidence to support the verdict. Counsel for appellant, on page 3 of their opening brief, make this statement:

'Intending to present to this court the question only as to whether or not, when a verdict has been rendered and judgment based thereon entered in the consolidated cases upon the same testimony at the same trial and by the same jury in favor of the appellant company, the appellant company was not also entitled to a judgment in its favor notwithstanding the verdict, against the defendant and appellant here, we do not deem it necessary to burden this brief with as much of the record of the case as we would otherwise do.'

The concluding paragraph of the brief is as follows:

'We therefore respectfully submit that, the verdict and judgment having been rendered in these consolidated actions in favor of the defendant street railway company and against the plaintiff Pierce, the motion made by the defendant company for judgment in its favor as against the plaintiff Allen notwithstanding the verdict in favor of the plaintiff Allen should have been granted, and that the judgment appealed from should be reversed, with instructions to the lower court to enter judgment in favor of the appellant and against the respondent.'

Again, in the reply brief counsel for appellant say:

'On page 3 of our opening brief, we stated that we intended to present to this court only one question, and stated the question. * * * We claimed in that brief, and now assign as error, that the lower court erred in not granting our motion for judgment notwithstanding the verdict, in our favor and against respondent, because of the fact that the same jury, impaneled and sworn to try both cases consolidated for that purpose, had, on the same trial and same evidence, decided against plaintiff Pierce.'

Later in the reply brief it is said:

'Respondent contends that the principle of the Doremus Case does not control, and we contend that it does, and this is the whole question involved in this appeal.'

Thus it will be seen that appellant's sole contention is that, inasmuch as the jury trying the consolidated cases returned a verdict against Pierce, the driver of the horse, respondent, who was riding with him in the buggy at the time of the accident, is thereby precluded from recovering in this case; and that the court should so hold as a matter of law. This position is palpably unsound and untenable. Doremus v. Root, 23 Wash. 710, 63 P. 572, 54 L. R. A. 649, referred to in appellant's briefs, was a case where the plaintiff brought an action against the Oregon Railroad & Navigation Company and Samuel Root, to recover damages for personal injuries alleged to have been caused solely by the negligence of Root while acting as conductor on one of the defendant railroad company's freight trains. It was alleged in the complaint that Root by virtue of his employment had charge and control of the train on which he was acting as conductor, and that the negligently, carelessly, and recklessly permitted the train to run past a siding, well knowing that by so doing the train was likely to collide with the train on which the plaintiff was employed as fireman, and that by reason of this negligence on the part of Root the injuries complained of by plaintiff were suffered. The sole negligence relied upon by plaintiff was that of the defendant Root, and the railroad company was sought to be held liable on the doctrine of respondeat superior. The jury returned a verdict against the railroad company only, and the trial court ruled that the verdict in...