Carkonen v. Columbia & P.S.R. Co.

• Decision Date: 30 April 1918
• Docket Number: 14461.
• Citation: 172 P. 816,102 Wash. 11
• Court: Washington Supreme Court
• Parties: CARKONEN v. COLUMBIA & P, S. R. CO.

172 P. 816

102 Wash. 11

CARKONEN v. COLUMBIA & P, S. R. CO.

No. 14461.

Supreme Court of Washington

April 30, 1918

Department 1. Appeal from Superior Court, King County; John S. Jurey Judge.

Action by James Carkonen, as administrator of John Athanasiades deceased, against the Columbia & Puget Sound Railroad Company. From an order setting aside judgment on verdict for plaintiff, and granting new trial, plaintiff appeals. Affirmed.

Geo. H Rummens and Edward Brady, both of Seattle, for appellant.

Farrell Kane & Stratton and Stanley J. Padden, all of Seattle, for respondent.

FULLERTON J.

One John Athanasiades, while engaged in labor as a section hand on respondent's line of railway, was run over and killed by one of its regular passenger trains. The appellant as administrator of the estate of the decedent brought an action under the federal Employers' Liability Act to recover for the benefit of the widow and minor children. Verdicts were returned for $2,850 in favor of the widow, $900 in favor of the elder daughter, and $1,950 in favor of the younger daughter, aggregating a total of $5,700. Judgment was entered upon the verdict, and two days thereafter the respondent moved for judgment notwithstanding the verdict, and also for a new trial. On a hearing before the trial judge the motion for judgment non obstante was granted, but no disposition was made of the motion for new trial. On an appeal from the judgment rendered notwithstanding the verdict, we held that the motion therefor was not timely made, inasmuch as judgment on the verdict had been entered prior to the filing of the motion. The judgment was reversed and the cause remanded, with instructions to the lower court to consider and determine the motion for a new trial, which was pending and undisposed of. See Carkonen v. Columbia & P. S. R. CO., 86 Wash. 473, 150 P. 1162. The superior judge who had tried the cause had died pending the appeal, and, when the cause was remanded for determination of the motion for a new trial, the matter was considered and determined by his successor in office, who made an order setting aside the judgment on the verdict and granting a new trial. This order is assigned by the appellant as error.

The first contention urged by the appellant is that the successor of a judge who tried a cause is not vested with the same discretion as his predecessor in granting a new trial on the ground of insufficiency of the evidence, for the reason that the successor has not heard the witnesses testify, nor observed their demeanor, thus precluding his ability to pass upon the question whether the losing party has had a fair trial. Appellant argues that because of such fact the rule that the order granting a new trial will not be disturbed on appeal except upon a showing of abuse of discretion does not apply. In other words, the appellant contends that the successor in the judicial office lacks jurisdiction to exercise such a discretion. Our statute (Rem. Code, § 398) defines a new trial as a re-examination of an issue in the same court. Further provision is made by Rem. Code, § 67, that:

'No proceeding in a court of justice, in any action, suit, or proceeding pending therein, is affected by a vacancy in the office of any or all of the judges, or by the failure of a session of the court.'

It is apparent that judicial powers are vested in the court rather than in the individual exercising functions as a judge. In the case of Shephard v. Gove, 26 Wash. 452, 67 P. 256, where a successor in the office of judge disregarded a ruling in the same case by his predecessor, we said:

'It is insisted by the appellant that Judge Griffin had no right to overrule a decision made by Judge Jacobs in the case. But the succession of judges cannot be considered by this court; the office is a continuing one; the personality of the judge is of no legal importance. The action of Judge Griffin was in legal effect a correction of his own action, which he deemed to have been erroneous; and it were far better that he should correct it, than to perpetuate an error which would have to be corrected by this court.'

In the case of State ex rel. Rucker v. Superior Court, 18 Wash. 227, 51 P. 365, where the successor in the office of judge vacated a prior judgment, we said:

'The judge of the superior court, who directed the judgment of dismissal on the 29th day of December, 1896, retired from office and his successor

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