Baillie v. City of Wallace

• Decision Date: 20 November 1912
• Parties: CHARLES M. BAILLIE, Appellant, v. THE CITY OF WALLACE, a Municipal Corporation, Respondent
• Court: Idaho Supreme Court

127 P. 908

22 Idaho 702

CHARLES M. BAILLIE, Appellant, v. THE CITY OF WALLACE, a Municipal Corporation, Respondent

Supreme Court of Idaho

November 20, 1912

VACATION OF VERDICT-NEW TRIAL-DISCRETION OF COURT-EVIDENCE.

(Syllabus by the court.)

1. Sec 4439 of the Rev. Codes specifies the grounds upon which a verdict of a jury may be vacated and a new trial granted upon the application of the party aggrieved, and prescribes in subdiv. 6 as a ground, "insufficiency of the evidence to justify the verdict or other decision or that it is against law." Subd. 7 prescribes, as a further ground "error in law, occurring at the trial, and excepted to by the party making the application."

2. Sec 4444 of the Rev. Codes provides that a verdict of the jury may be vacated, and a new trial granted by the court in which the action is pending, on its own motion, without application of either party, when there has been such a plain disregard by the jury of the instructions or the evidence as to satisfy the court that the verdict was rendered under a misapprehension of such instructions, or under the influence of passion or prejudice.

3. Under the statutes of this state this court has announced the rule that the trial court possesses a discretion, to be exercised wisely in the granting or refusal of new trials and that such discretion will not be by the appellate court disturbed unless it manifestly and clearly appears to have been exercised unwisely and to have been manifestly abused.

4. In determining the question of abuse of discretion, in granting or refusing a motion for a new trial, the circumstances in each case, as shown by the evidence, should be the practical and proper guide in determining the same, and it should be a legal and not an arbitrary discretion, and should be exercised in conformity with the spirit of the law, and in such a manner as will subserve rather than impede and defeat the ends of justice, and technicalities should be avoided.

5. Evidence and record in this case examined, and held that the trial court did not abuse its discretion in granting a motion for a new trial.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.

Action to recover damages for personal injuries. Judgment for plaintiff. New trial granted, from which order plaintiff appeals. Affirmed.

Order granting a new trial affirmed. Costs awarded to respondent.

John P. Gray, Frank M. McCarthy, and Therrett Towles, for Appellant.

The court in granting a new trial certainly infringed upon the province of the jury, disregarded the findings of the jury, and constituted himself a trier of facts, for it was for the jury to say what was the proximate cause of the injury to the appellant. (Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254.)

This court has repeatedly held that where there is a substantial conflict in the testimony, the verdict of the jury should not be, and will not be, set aside for want of evidence to sustain the same. (Knauf v. Dover Lumber Co., 20 Idaho 773, 120 P. 157; Thomason v. Lane-Potter Lumber Co., 20 Idaho 771, 119 P. 875; Friedrich v. Donahue, 20 Idaho 92, 116 P. 1029; Edmundson v. Taylor, 17 Idaho 618, 106 P. 991; Eaves v. Sheppard, 17 Idaho 268, 134 Am. St. 256, 105 P. 407; Liggett v. Evans, 16 Idaho 760, 102 P. 486; Church v. Van Housen, 15 Idaho 249, 97 P. 36; Valley Lumber Co. v. McGilvery, 16 Idaho 338, 101 P. 94.)

The jury held that the defendant was guilty of negligence, and that the proximate cause of the injuries to the appellant was the negligence of the defendant. The trial court did not grant a new trial because negligence was not proved against the city, but in this respect approved the verdict of the jury, and it will not be in the province of the supreme court to interfere with the solution made by the jury and approved by the trial court. (Southern R. Co. v. Webb, 116 Ga. 152, 42 S.E. 395, 59 L. R. A. 109; Milwaukee & St. Paul R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256.)

The finding of the jury becomes binding not only only upon the parties to the litigation, but also upon the courts. (Adams v. Bunker Hill etc. Mining Co., 12 Idaho 639, 89 P. 624, 11 L. R. A., N. S., 844.)

Where there is any evidence of the master's negligence and that it was the proximate cause of the injury complained of, the issue must be determined by the jury, and an appellate tribunal will not disturb the verdict, unless manifestly against the clear preponderance of the evidence. Where the evidence on an issue is such that reasonable minds may differ in their conclusions drawn from it, the verdict of the jury must be taken as conclusive. (Maw v. Coast Lumber Co., 19 Idaho 396, 114 P. 9; Producers' Oil Co. v. Barnes (Tex. Civ. App.), 120 S.W. 1023, and cases cited.)

James E. Gyde, and Featherstone & Fox, for Respondent.

Upon appeal from an order granting a new trial on the ground of insufficiency of the evidence to justify the verdict, even though the evidence is conflicting, such order will not be reversed unless it affirmatively appears to have been a clear abuse of discretion. (Say v. Hodgin, 20 Idaho 64, 116 P. 410; Jacksha v. Gilbert, 4 Idaho 738, 44 P. 555; Gray v. Pierson, 7 Idaho 540, 64 P. 233; Jones v. Campbell, 11 Idaho 752, 84 P. 510; Buckle v. McConaghy, 12 Idaho 733, 88 P. 100; Brossard v. Morgan, 6 Idaho 479, 56 P. 163; Pico v. Cohn, 67 Cal. 258, 7 P. 680; Breckenridge v. Crocker, 68 Cal. 403, 9 P. 426.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This action was brought by the appellant to recover from the respondent damages for personal injuries sustained by appellant by coming in contact with a metallic sign attached to a building abutting on Sixth street, in the city of Wallace, and suspended over the sidewalk constructed on Sixth street by the city of Wallace, which sign was suspended from a building occupied by and in the possession of the Northern Express Company, so low that the appellant, while walking along said street on the sidewalk, came in contact therewith, striking his head against the sign.

The negligence of the city is alleged mainly to have been caused, first, by the city's failure to keep Sixth street, a public street and highway, in a reasonably safe condition for travel by persons lawfully traveling upon the same; second, by the city's failure to prohibit and prevent obstructions being placed therein or suspended over the sidewalk and public way; third, by the failure of the city to remove or cause to be removed obstructions placed over or across or suspended so as to reasonably interfere with the safety of persons who may travel or pass over said sidewalk; fourth, by the failure of the city to require all signs or obstructions, if permitted to be suspended over the sidewalks, to be placed at such height as to render travel thereon safe.

A demurrer was filed to the complaint alleging as a ground therefor that the complaint did not state facts sufficient to constitute a cause of action, and was uncertain in several particulars. This demurrer was overruled. An answer was filed which put directly in issue all the allegations of the complaint relating to negligence, and specifically denied that the city permitted the sign to be so attached to the building occupied by the Northern Express Company, or that it had any knowledge thereof, and alleged affirmatively that it had no knowledge of such sign having been extended over the sidewalk, and denied that the plaintiff ran into said sign as alleged in the complaint, or that he encountered the sign at all; and alleged affirmatively that if plaintiff was injured by running into said sign, it was through his own contributory negligence. Upon these issues evidence was introduced, and the cause was submitted to the jury, and a verdict was rendered in favor of the plaintiff for the sum of $ 5,000, and judgment was rendered accordingly.

A motion for a new trial was made and granted, and in the order granting the new trial the trial court gave as his reasons the following:

"1st. Because the defendant had no actual notice of the alleged obstruction and the alleged obstruction was not such a patent one as, under the evidence in this cause, constituted notice to the city authorities.

"2d. The verdict is against the evidence in this, that there was proof of three wounds and the evidence fails to disclose which of these three wounds was inflicted by the sign, and there is no specific proof as to the extent of the injury occasioned by the one wound alleged to have been inflicted upon the plaintiff by encountering the obstruction complained of.

"3d. The verdict is contrary to instructions numbers 8a and 15a given by the court."

This appeal is from the order granting the motion for a new trial.

Counsel for appellant seem to rely entirely upon the contention that, notwithstanding the general rule that the granting of a new trial rests largely in the discretion of the trial court, yet such rule in the present case does not apply, for the reason that the trial court has set forth the grounds upon which he granted a new trial, and that such grounds are contrary to the evidence, contrary to the law, and contrary to the finding of the jury. It is argued that the trial court by such order disagreed with the unanimous report of the jury upon the facts, but that notwithstanding the fact that the trial court disagreed with the jury upon the facts, it was error for the trial court to grant a new trial, and that the opinion of the trial court upon the facts, where there is a conflict in the evidence, will not justify the granting of a new trial.

Sec 4439 of the Rev. Codes specifies the grounds upon which a verdict...