O'Brien v. City of Seattle, 34008

• Decision Date: 03 July 1958
• Docket Number: No. 34008,34008
• Citation: 327 P.2d 433,52 Wn.2d 543
• Parties: James R. O'BRIEN and Eileen O'Brien, his wife, Respondents, v. CITY OF SEATTLE, a municipal corporation, Appellant.
• Court: Washington Supreme Court

Page 543

52 Wn.2d 543

327 P.2d 433

James R. O'BRIEN and Eileen O'Brien, his wife, Respondents, v. CITY OF SEATTLE, a municipal corporation, Appellant.

No. 34008.

Supreme Court of Washington, Department 1.

July 3, 1958.

A. C. Van Soelen, John A. Logan, Frank W. Draper, Seattle, for appellant.

Frank J. Conway, Seattle, for respondents.

FINLEY, Justice.

This is an action for damages resulting from an automobile accident. The O'Briens alleged that the accident resulted from the failure of the city of Seattle to maintain its streets in a reasonably safe condition for the traveling public, in that the city failed to remove or cover old, unused streetcar tracks. The city denied any negligence on its part, and affirmatively alleged that the accident resulted from the negligence of Mr. O'Brien, the driver of plaintiff' car. The jury returned a verdict for the defendant, but the trial judge granted plaintiffs' motion for a new trial. The city of Seattle, defendant, has appealed.

The first argument of appellant, hereinafter referred to as the city, which we must consider is the contention that it was error to grant a new trial, because no other verdict could have been permitted to stand; that the city was entitled to a dismissal because: (1) no actionable negligence has been proved against the city, it having been clearly established that the streetcar tracks were of standard construction and maintenance; and (2) respondents were guilty of contributory negligence as a matter of law.

The facts in this case presented a question for a jury as to the negligence of the city. A mere reference to the recent case of DeYoung v. Campbell (DeYoung v. City of Seattle), Wash.1957, 315 P.2d 629, is sufficient to dispose of the city's contention that the standard construction of the tracks negated negligence on the part of the city.

Contributory negligence cannot be conclusively established by a state of facts upon which reasonable and fair-minded men may well differ. Contributory negligence can be determined as a matter of law only in the clearest of cases. This is not such a case.

The trial court justified the granting of a new trial on three grounds: (1) misconduct of the bailiff; (2) error in the giving of Instruction No. 9; and (3) erroneous admission of evidence.

'We start with the recognized principle that an order granting or denying a new trial is not to be reversed, except for an abuse of discretion. [Citing cases.] This principle is subject to the limitation that, to the extent that such an order is predicated upon rulings as to the law, such as those involving the admissibility of evidence or the correctness of an instruction, no element of discretion is involved. * * * [Citing cases.] A much stronger showing of an abuse of discretion will ordinarily be required to set aside an order granting a new trial than one denying it. * * * [Citing case.]' Johnson v. Howard, 1954, 45 Wash.2d 433, 275 P.2d 736, 739.

The trial judge indicated that conduct of the bailiff respecting the jury was the factor which most influenced his decision in granting a new trial. The facts with respect to this matter may be stated briefly, as follows:

The case was submitted to the jury early in the afternoon, and a verdict was returned for the city at about 10:00 p. m. Thereafter, two of the jurors filed affidavits concerning communications between the jury foreman and the bailiff. One juror stated in his affidavit:

'* * * that at about 9:40 P.M. the foreman knocked on the door, the bailiff came to the door, whereupon the foreman inquired as to the interpretation of Instruction No. 13; that about 10 minutes later, the bailiff knocked at the door of the jury room, opened the door, and stated in affiant's presence and within his hearing, words to this effect: That the jury was to consider Instruction No. 9, and then the jury was to let him know in 30 minutes whether or not they had reached a verdict.'

The other juror who made an affidavit corroborated the foregoing in the following language:

'* * * the bailiff knocked at the door of the jury room, and in my presence and within my hearing, told the foreman of the jury that he, the bailiff, had telephoned the Judge and that the jury was to consider Instruction No. 9 especially, and that Instruction No. 9 was to be considered more important than Instruction No. 13, about which members of the jury had previously inquired.'

The controverting affidavits of the bailiff and his assistant admit that a conversation took place between the bailiff and the jury foreman, but they deny that the bailiff referred to Instruction No. 9, or to any other instruction.

Eleven days after the trial terminated, the trial judge recalled the entire jury panel, placed them under oath, and conducted an examination in order 'to get to the truth of it.' The trial judge is to be commended for the action taken to lear exactly what happened. The transcript of the examination of the jury is before us, and it is unquestionably clear that some remarks passed between the jury foreman and the bailiff about at least one...