Boyd v. Cole

• Decision Date: 05 January 1937
• Docket Number: 26425.
• Citation: 63 P.2d 931,189 Wash. 81
• Court: Washington Supreme Court
• Parties: BOYD v. COLE.

63 P.2d 931

189 Wash. 81

BOYD v. COLE.

No. 26425.

Supreme Court of Washington

January 5, 1937

Department 2.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by Agnes Boyd against O. H. Cole. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Merrick Williams & Fitch, of Seattle, for appellant.

John F Walthew and Robert M. Burgunder, both of Seattle (Wright &amp Wright, of Seattle, of counsel), for respondent.

HOLCOMB Justice.

This action grew out of an automobile accident in which respondent was seriously injured and was allowed $7,000 by a jury after a trial in the lower court. After the verdict had been entered, appellant moved for judgment non obstante veredicto and for a new trial, the latter motion being based upon seven statutory grounds, omitting the fourth one, that of newly discovered evidence. Both motions were denied, from which this appeal arises.

Fourteen errors are assigned by appellant, but few of which can be considered on this appeal. A motion in respondent's brief to strike the brief of appellant, for the reason that instructions given and excepted to and instructions requested and refused were not set forth in full in appellant's brief, has been cured by setting them out in full in appellant's reply brief, as permitted by this court.

Assignments 5 to 13, inclusive, relate to the giving of instructions numbered 7, 8, 9, 10, 12, 18, 20, 22, and 28. Instructions numbered 7 and 9, given by the court, are practically the only ones argued by appellant in his brief. Instruction 7 sets forth the statute respecting parking and stopping regulations on public highways. Rem.Rev.Stat. § 6362-47. The only exception made to that instruction is, that 'it should go ahead and set forth the exceptions or the interpretations of the supreme court as to the blocking of the highway.' No such exception is good unless an instruction containing such modification, correct in law, is requested.

The exception to instruction 9 is that the burden of proof is upon the plaintiff to prove the violation of the law as that law had been interpreted by the Supreme Court. These exceptions are too general to apprise the trial court of the precise deficiency in the instructions under our Rules of Practice, rule VI, 159 Wash. lxi; Helf v. Hansen & Keller Truck Co., 167 Wash. 206, 9 P.2d 110. The exceptions to the other instructions complained of were equally vague and indefinite. A general exception was also made by appellant 'to all of those instructions, individually and severally, on the ground that they do not correctly set forth the law and the evidence in this case.' This exception was too general and indefinite.

The exception taken by appellant to the refusal to give requested instructions 1 to 16, inclusive, was on the ground that 'they set forth statements of law vitally necessary to adequately instruct the jury as to the law of this case.' These exceptions were certainly too general and indefinite to comply with our rule. They, in no way, specifically point out to the court the matters concerning which complaint is now made. None of the exceptions taken to any of the instructions given or refused are sufficient to comply with Rules of Practice, VI, supra. Kelley v. Cohen, 152 Wash. 1, 277 P. 74; Davis v. North Coast Transportation Co., 160 Wash. 576, 295 P. 921; Helf v. Hansen v. Keller Truck Co., supra; Drainage District No. 2 v. Everett, 171 Wash. 471, 18 P.2d 53, 88 A.L.R. 123; Gaskill v. Amadon, 179 Wash. 375, 38 P.2d 229; Keseleff v. Sunset Highway Motor Freight Co. (Wash.) 60 P.2d 720.

There is nothing left to determine, but the questions of whether the court erred in denying appellant's motion for a new trial and his motion for a judgment notwithstanding the verdict.

First considering the motion for judgment notwithstanding the verdict, all statements favorable to the contention of respondent must be taken as true and all inferences most favorably to her and most strongly against appellant. Where the minds of reasonable men may differ, the question should be submitted to the jury. Bell v. Northwest Cities Gas Co., 164 Wash. 450, 2 P.2d 644; Hart v. Hogan, 173 Wash. 598, 24 P.2d 99; Harry v. Beatty, 177 Wash. 153, 31 P.2d 97; Hayden v. Colville Valley National Bank, 180 Wash. 220, 39 P.2d 376. When a case is tried to the jury, we inquire only as to whether there is substantial evidence to sustain the verdict. Smith v. Seattle, 178 Wash. 477, 35 P.2d 27. Such a motion involves no element of discretion and can only be granted where, as a matter of law, there is no evidence or reasonable inference from the evidence to sustain the verdict. Carroll v. Western Union Telegraph Co., 170 Wash. 600, 17 P.2d 49.

Although there was conflicting evidence, the evidence on behalf of respondent showed substantially these facts: Respondent, a graduate nurse and an invited guest, was injured while one of a party of six, in a sedan owned and operated by one Brawley who were going skiing, intending to go to a point east of the Summit on the Snoqualmie Pass road. Leaving Seattle about 7:45 in the evening of January 18, 1936, with a short stop at North Bend, they proceeded to Camp Mason, where they again stopped and placed chains on the wheels of the car. Snow was falling lightly at this point and increased slightly as they proceeded until there was one or two inches of new snow on the concrete pavement at the place of the accident. Some snow had been piled on the sides, in places to within a foot of the edge of...