Daigle v. Rudebeck

• Decision Date: 12 December 1929
• Docket Number: 22074.
• Citation: 282 P. 827,154 Wash. 536
• Parties: DAIGLE v. RUDEBECK et al.
• Court: Washington Supreme Court

282 P. 827

154 Wash. 536

DAIGLE v. RUDEBECK et al.

No. 22074.

Supreme Court of Washington

December 12, 1929

Department 1.

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

Action by Sanford Daigle, Jr., a minor, by and through his guardian ad litem, Sanford Daigle, against Nick Rudebeck and wife. From an order granting a new trial after verdict for plaintiff, defendants appeal. Affirmed.

Poe, Falknor, Falknor & Emory, of Seattle, for appellants.

Stanley J. Padden and Howard Le Clair, both of Seattle, and Clarence J. Coleman, of Everett, for respondent.

TOLMAN J.

This is an action for personal injuries to the minor plaintiff received in a collision between a bicycle ridden by the boy and an automobile owned by and operated on behalf of the husband and wife who were made defendants.

The cause was tried to a jury and a verdict rendered in plaintiff's favor of $1,018.10. The plaintiff moved for a new trial on a number of grounds, among them being inadequacy of the verdict by reason of passion and prejudice, erroneous assessment of damages, in that the amount was too small, and that the verdict is not in accordance with the effective proof which shows that the plaintiff was entitled to recover (if entitled to recover at all) a greater amount than was allowed by the jury. This motion was in due course presented to the trial court who in a written order granting a new trial set forth: 'Now, therefore, in confirmation of said oral announcement the court does now order, direct, adjudge and decree that the plaintiff be, and he is hereby granted a new trial in the above entitled action, and the verdict of the jury is hereby set aside and held for naught; that the said motion for new trial is granted upon the ground of insufficiency of the evidence to justify the verdict in that the amount awarded by the jury is not in conformity with the evidence adduced at the trial and is inadequate though not so far inadequate as to indicate passion or prejudice.' From this order the defendants have appealed to this court.

The foundation of appellants' contentions here is the holding embodied in the written order, above quoted to the effect that the jury was not swayed by passion or prejudice in reaching its verdict, and it is argued therefrom that the ruling complained of amounts to a denial of the right of trial by jury.

The question of negligence, for present purposes, is not in the case. That issue has been found against the appellants by the jury, and, having so found, it was the duty of the jury to assess the damages flowing from that negligence according to the evidence and the instructions of the court. The court instructed the jury: 'You are instructed that, in the event you find a verdict for the plaintiff, you will fix such in that amount and allow the plaintiff such sum as, from the fair preponderance of the evidence bearing thereon, you deem necessary to fairly, justly and fully compensate the plaintiff for such injuries as you may believe, from the fair preponderance of the evidence, he sustained as a direct and proximate result of the collision in question, including the temporary and permanent physical impairment, if any plaintiff suffered, and including such pain and suffering, if any, which you may find plaintiff has endured or will with reasonable probability endure in the future. You shall also allow the plaintiff recovery for such sums as represent what you shall find from the fair preponderance of the evidence to be the amount of expense incurred for medical and surgical services, not exceeding five hundred dollars, for hospital expense not exceeding $310.60, for nurse hire not exceeding $208.00 and for medicines not exceeding $12, and in no event can the entire amount of your verdict, if rendered for plaintiff, exceed the sum of $15,000.00.'

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