Buell v. Park Auto Transp. Co.

• Decision Date: 15 April 1926
• Docket Number: No 19498.,19498.
• Citation: 138 Wash. 678,244 P. 992
• Court: Washington Supreme Court
• Parties: BUELL et ux. v. PARK AUTO TRANSP. CO.

244 P. 992

138 Wash. 678

BUELL et ux. v. PARK AUTO TRANSP. CO.

No 19498.

Supreme Court of Washington

April 15, 1926

Department 2.

Appeal from Superior Court, Snohomish County; Bell, Judge.

Action by S.E. Buell and wife against the Park Auto Transportation Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

James B. Howe, Hugh A. Tait, Murphy & Kumm, and Charles L. Harris all of Seattle, for appellant.

Williams & Davis, of Everett, for respondents.

MAIN J.

This action was brought to recover for injuries to the persons of the plaintiffs and damages to their automobile. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $4,960. Motions for judgment notwithstanding the verdict and for new trial being overruled, judgment was entered upon the verdict from which the defendant appeals. There had been a former trial which had resulted favorably to the respondents, and upon appeal (231 P. 161, 132 Wash. 92), the judgment was reversed, and the cause remanded for a new trial. The facts are sufficiently stated in the opinion upon the former appeal and need not be restated here.

The appellant first contends that the trial court erred in not sustaining its motion for judgment notwithstanding the verdict. This same question was presented upon the other appeal and it was there held that the evidence was sufficient to take the case to the jury. Under the evidence in the present case the jury had a right to find substantially the same facts as under the evidence upon the first trial. The prior holding is decisive of this question.

The appellant for a number of reasons claims that a new trial should be granted. The general verdict of the jury was, as stated, for $4,960. In answer to special interrogatories the jury found the damages to the automobile to be $225; the damages for injuries to Mrs. Buell, $4,735; and awarded nothing to Mr. Buell. In this connection it is pointed out that upon the former trial the jury awarded Mr. Buell the sum of $500. The reason may be that upon the former trial there was evidence of a physician that he was injured permanently. Upon the second trial this evidence was wanting. These is nothing in the answers to the special interrogatories which would justify the court in granting a new trial.

Complaint is especially directed against instruction No. 2 which the court gave to the jury. This instruction is in accordance with the opinion upon the former appeal, and was given to correct the error which resulted in a reversal upon that hearing. It is now complained that that part of the instruction was erroneous which stated that, if the appellant's stage at the time of the accident was being driven at a rate of speed that 'endangered the property of the plaintiffs, or the life and limb of the plaintiffs,' this would constitute negligence. The instruction is long and this element was only one clause in it. The criticized portion of the instruction is substantially in accordance with the language of section 6339, Rem. Comp. Stat. The same language was found in the instruction for which the judgment was reversed upon the former appeal, but there was no complaint made as to this particular matter at that time. The question is raised for the first time in the present appeal. In Perrault v Emporium Department Store Co., ...