Crowl v. West Coast Steel Co., 15459.

CourtUnited States State Supreme Court of Washington
Writing for the CourtBRIDGES, J.
Citation109 Wash. 426,186 P. 866
PartiesCROWL v. WEST COAST STEEL CO. et al.
Decision Date13 January 1920
Docket Number15459.

186 P. 866

109 Wash. 426

CROWL
v.
WEST COAST STEEL CO. et al.

No. 15459.

Supreme Court of Washington

January 13, 1920


Department 2.

Appeal from Superior Court, Pierce County; E. M. Card, Judge.

Action by B. A. Crowl against the West Coast Steel Company and C. B. Bell. Verdict for defendants. From an order granting a new trial, the defendants appeal. Reversed and remanded, with instructions. [186 P. 867]

[109 Wash. 427] James B. Murphy and Arthur H. Hutchinson, both of Seattle, for appellants.

Burkey, O'Brien & Burkey, of Tacoma, for respondent.

BRIDGES, J.

This was a suit for personal injuries. The complaint, in substance, alleged that near the intersection of Twenty-First and Junette streets, in Tacoma, Wash., the defendants negligently caused their automobile to run against and over the plaintiff, thereby injuring him. This location is in the residence portion of the city. The defendants denied negligence and set up contributory negligence as a cause of the injury. There was a verdict against the plaintiff and in favor of the defendants. The plaintiff asked for a new trial based upon the various statutory grounds. The court later made an order granting such new trial. The appeal is from that order.

We are met at the outset with the contention of respondent that the granting of a new trial is within the discretion of the trial court, and that this court will not interfere with the exercise of such discretion except for manifest abuse thereof. That such is the general rule in this state cannot be denied. Nordeen Iron Works v. Rucker, 83 Wash. 126, 145 P. 219; Snider v. Washington Water Power Co., 66 Wash. 598, 120 P. 88; Gardner v. Lovegren, 27 Wash. 356, 67 P. 615; Dunkle v. Spokane Falls, etc., Ry., 20 [109 Wash. 428] Wash. 254, 55 P. 51. However, the doctrine that the granting of a new trial is in the discretion of the trial court can be applied only to those instances where the trial court has so acted on grounds involving questions of discretion as distinguished from grounds involving questions of law. For illustration, the court would exercise its discretion by granting a new trial because he believed the evidence was insufficient to justify the verdict, or that there had been misconduct on the part of the jury or some of the parties to the suit. But where a new trial is granted because the court is of the opinion that he has erred in some matter of law, such, for illustration, as the giving or the refusing to give certain instructions there would not be an exercise of discretion. In the case of Dunkle v. Spokane Falls, etc., supra, the trial court granted a new trial for the reason that he was of the opinion that he had erred in denying the [186 P. 868] plaintiff's motion to dismiss the action. This court said:

'Respondent invokes the familiar rule that a motion for a new trial is a matter addressed to the discretion of the lower court, and that the order of the court will not be disturbed unless the record discloses an abuse of discretion But it will be observed in this case that the order was based upon the sole ground that the court committed error in denying plaintiff's application to dismiss his action This raises a clean-cut legal proposition, not involving in its determination the exercise of any discretion, and there is nothing in the general rule which will prevent this court from reviewing the order.'

In the case of Gardner v. Lovegren, supra, this court said:

'It is true that the granting of a motion for a new trial is, in a certain sense, discretionary with the trial court and, if it were upon matters of fact, the appellate court would hesitate to set aside an order made by [109 Wash. 429] the trial court, unless it plainly appeared that the discretion was abused. But in the case at bar it is a pure question of law, and this court will act upon it independently and uncontrolled by the judgment of the lower court, as it would upon any other question of law which was brought to it upon appeal.'

But the respondent insists that, inasmuch as the order granting the new trial was a general one and did not designate the grounds upon which it was made, this court cannot tell whether the trial court acted in the exercise of its discretion or because of some supposed erroneous ruling involving purely legal propositions. We are convinced, however, that the record shows the grounds upon which the court made its order for a new trial. The court was considering four propositions, as follows: (1) Alleged misconduct of one or more of the jurors; (2) alleged misconduct of defendant's attorneys in addressing the jury; (3) submitting to the jury certain special interrogatories without having given permission to plaintiff's attorneys to argue thereupon; and (4) the giving by the court of its instruction No. 17. The record makes it plain that the trial court did not grant the motion for a new trial on either of the first two grounds. The court said:

'I think there was misconduct of the jury, but not very serious. * * * I cannot bind the Supreme Court on what they will review. I do not think there was any misconduct of counsel, but I do not know what the Supreme Court might think.'

Later the court made and filed in the cause a memorandum decision wherein it is stated that----

A new trial 'is granted in this action for error in instruction No. 17, presented by the defendants; also for misconduct of jury and error in the submitting of interrogatories. The last ground standing alone would not require a new trial, but the error in
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29 practice notes
  • Henthorne v. Hopwood
    • United States
    • Supreme Court of Oregon
    • October 21, 1959
    ...Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Knutson v. McMahan, 186 Wash. 518, 58 P.2d 1033; Crowl v. West Coast Steel Co., 109 Wash. 426, 186 P. 866; Phillips-Buttorff Mfg. Co. v. McAlexander, 15 Tenn.App. 618; Ford v. Werth, 197 Wis. 211, 221 N.W. 729. But the reasoning of the......
  • DeRossett v. Malone
    • United States
    • Court of Appeals of Tennessee
    • November 30, 1950
    ...contributed as a proximate cause of her injuries, was one for the jury. Cf. Elmore v. Thompson, supra; Crowl v. West Coast Steel Co., 109 Wash. 426, 186 P. 866; Wadley v. Dooly, 138 Ga. 275, 75 S.E. 153; Grebe v. Kligerman, 310 Pa. 60, 164 A. The defendant makes an argument based upon the e......
  • Smart v. Raymond, No. 19636.
    • United States
    • Court of Appeal of Missouri (US)
    • May 20, 1940
    ...at 39th & Main Streets. We have examined the cases cited by defendants and find them not in point. In Crowl v. West Coast Steel Co., 109 Wash. 426, 186 P. 866, the ordinance provided that pedestrians should cross streets "only at street intersections and places designated at cross ......
  • Swanson v. Pacific Northwest Traction Co., 17116.
    • United States
    • United States State Supreme Court of Washington
    • July 26, 1922
    ...v. Johnson, 85 Wash. 18, 147 P. 649; Daugherty v. Metropolitan Motor Car Co., 85 Wash. 105, 147 P. 655; Crowl v. West Coast Steel Co., 109 Wash. 426, 186 P. 866; Olsen v. Peerless Laundry, 111 Wash. 660, 191 P. 756; Berriat v. [121 Wash. 101] Washington Water Co., 203 P. 936; Shilliam v. Ne......
  • Request a trial to view additional results
29 cases
  • Henthorne v. Hopwood
    • United States
    • Supreme Court of Oregon
    • October 21, 1959
    ...Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063; Knutson v. McMahan, 186 Wash. 518, 58 P.2d 1033; Crowl v. West Coast Steel Co., 109 Wash. 426, 186 P. 866; Phillips-Buttorff Mfg. Co. v. McAlexander, 15 Tenn.App. 618; Ford v. Werth, 197 Wis. 211, 221 N.W. 729. But the reasoning of the......
  • DeRossett v. Malone
    • United States
    • Court of Appeals of Tennessee
    • November 30, 1950
    ...contributed as a proximate cause of her injuries, was one for the jury. Cf. Elmore v. Thompson, supra; Crowl v. West Coast Steel Co., 109 Wash. 426, 186 P. 866; Wadley v. Dooly, 138 Ga. 275, 75 S.E. 153; Grebe v. Kligerman, 310 Pa. 60, 164 A. The defendant makes an argument based upon the e......
  • Smart v. Raymond, No. 19636.
    • United States
    • Court of Appeal of Missouri (US)
    • May 20, 1940
    ...at 39th & Main Streets. We have examined the cases cited by defendants and find them not in point. In Crowl v. West Coast Steel Co., 109 Wash. 426, 186 P. 866, the ordinance provided that pedestrians should cross streets "only at street intersections and places designated at cross walks". I......
  • Swanson v. Pacific Northwest Traction Co., 17116.
    • United States
    • United States State Supreme Court of Washington
    • July 26, 1922
    ...v. Johnson, 85 Wash. 18, 147 P. 649; Daugherty v. Metropolitan Motor Car Co., 85 Wash. 105, 147 P. 655; Crowl v. West Coast Steel Co., 109 Wash. 426, 186 P. 866; Olsen v. Peerless Laundry, 111 Wash. 660, 191 P. 756; Berriat v. [121 Wash. 101] Washington Water Co., 203 P. 936; Shilliam v. Ne......
  • Request a trial to view additional results

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