Dunkle v. Spokane Falls & N. Ry. Co.

• Citation: 55 P. 51,20 Wash. 254
• Court: United States State Supreme Court of Washington
• Decision Date: 26 November 1898
• Parties: DUNKLE v. SPOKANE FALLS & N. RY. CO.

55 P. 51

20 Wash. 254

DUNKLE v. SPOKANE FALLS & N. RY. CO.

Supreme Court of Washington

November 26, 1898

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by George W. Dunkle against the Spokane Falls & Northern Railway Company to recover damages for personal injuries. From an order granting plaintiff a new trial after judgment for defendant by the court after discharging the jury, the defendant appeals. Reversed.

Albert Allen and Jay H. Adams, for appellant.

T. C Griffitts and John M. Gleeson (Dudley & Dudley, of counsel) for respondent.

GORDON, J.

At the trial of this action below, plaintiff having introduced his evidence and rested, the defense submitted a motion to discharge the jury from further consideration of the case and for judgment. This motion was made in conformity to section 4994, Ballinger's Codes & St., which is as follows: 'In all cases tried in the superior court with a jury in which the legal sufficiency of the evidence shall be challenged, and the court shall decide as a matter of law what verdict should be found, the court shall thereupon discharge the jury from further consideration of the case and direct judgment to be entered in accordance with its decision.' After argument the court granted the motion and thereupon the plaintiff moved to dismiss the case without prejudice. This latter motion was overruled upon the ground that it came too late, and the jury was discharged, and judgment entered for the defendant. Thereafter plaintiff moved for a new trial, basing such motion upon various grounds; and this latter motion, coming on to be heard, was granted by the court on the sole ground, as appears from the order, 'that the court erred in denying the plaintiff's motion to dismiss the case without prejudice on his motion.' 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. We have examined...