Babcock v. M. & M. Const. Co.

• Decision Date: 07 December 1923
• Docket Number: 18241.
• Citation: 127 Wash. 303,220 P. 803
• Court: Washington Supreme Court
• Parties: BABCOCK v. M & M CONST. CO. et al.

220 P. 803

127 Wash. 303

BABCOCK v. M & M CONST. CO. et al.

No. 18241.

Supreme Court of Washington

December 7, 1923

Department 1.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by C. D. Babcock against the M & M Construction Company, a corporation, John A. Dickson, and wife. Judgment for defendants. From an order granting plaintiff a new trial defendants appeal. Reversed as to Dickson, and case against him dismissed, and affirmed as to M & M Construction Company.

Tom Alderson and E. W. Hoffman, both of Seattle for appellants.

Silvain & Butler, of Seattle, for respondent.

MACKINTOSH J.

The appellant Dickson was the driver of an auto truck engaged in dumping dirt for the appellant M & M Construction Company over the side of a bridge in the city of Seattle. The respondent's complaint alleged that he was driving his automobile across the bridge and that Dickson carelessly and negligently backed his truck into the automobile, and that the presence of his automobile behind the truck was due to the negligent act of an employee of the M & M Construction Company who signaled him to pass behind the truck. The trial terminated in a verdict in favor of the appellants, but, upon motion of the respondent for a new trial, one was accorded him, for the reason that the trial court believed that it had committed error in its instructions to the jury.

The appeal presents two phases: The first relates to the appellant Dickson, who, by appropriate motions during the progress of the trial, sought to have the question of his negligence taken from the jury's consideration.

It is now urged on his behalf that the testimony showed no negligence on his part, and that he is entitled to have the action dismissed as to him. Upon the rehearing of the case of Adams v. Anderson & Middleton Lumber Co. 214 P. 835, we held that, where there was insufficient evidence to justify a recovery against a defendant, and a verdict had been rendered in favor of the plaintiff, and subsequently a new trial has been granted upon the plaintiff's application, that, although a motion for judgment notwithstanding the verdict had been denied the defendant, upon appeal from the order granting a new trial the court would inquire into the sufficiency of the evidence and if found insufficient the court would dismiss the action. The same situation is presented here, and, being satisfied from an examination of the testimony that no evidence was presented justifying the jury's verdict against Dickson, the case will now be dismissed as to him.

The second phase of the case relates to the appellant M & M Construction Company. The court, in its instructions 2, 3 and 5, told the jury that the question for its determination was Dickson's negligence, and if they found that he was not negligent then the verdict should be returned for both defendants, or if they found respondent was guilty of contributory negligence, then there could be no recovery. After the conclusion of the reading of these instructions to the jury, the court's attention was called to the fact that...