Johnson v. Washington Water Power Co.

• Decision Date: 27 March 1911
• Citation: Johnson v. Washington Water Power Co., 62 Wash. 619, 114 P. 453 (Wash. 1911)
• Parties: JOHNSON v. WASHINGTON WATER POWER CO.
• Court: Washington Supreme Court

114 P. 453

62 Wash. 619

JOHNSON v. WASHINGTON WATER POWER CO.

Supreme Court of Washington

March 27, 1911

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Orville M. Johnson against the Washington Water Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Post Avery & Higgins, for appellant.

W. H Plummer and Geo. A. Latimer, for respondent.

FULLERTON, J.

This action was brought by the respondent against the appellant to recover for personal injuries. In the complaint it is alleged that the defendant operates a street railway system in the city of Spokane and vicinity, one line of which runs from the main part of the city to the town of Hilliard; that the respondent boarded one of the appellant's cars running on this line in the city of Spokane, and rode therein to the town of Hilliard, and proceeded to alight therefrom, when he was assaulted and beat by the conductor of the car. The answer put in issue the allegations of the complaint relating to the assault, and alleged affirmatively that the injuries received by the respondent, if any he did receive, were the result of his own acts and negligence, and not the fault of the appellant. A denial was filed to the reply. On the issues thus made a trial was had which resulted in a verdict for the respondent in the sum of $3,300. The trial judge, however deemed the verdict excessive, and gave the respondent the option of taking a judgment for $1,500 or of submitting to a new trial. The respondent accepted the first part of the alternative, and judgment was entered in his favor for $1,500, and this appeal taken therefrom. The appellant in this court makes two principal contentions: (1) That the judgment is excessive; and (2) that erroneous instructions were given the jury.

On the first proposition suggested the evidence is hopelessly in conflict. If the respondent's story is to be believed, the conductor was the aggressor throughout the controversy, the assult was as vicious as it was unprovoked, the injuries of the respondent were severe and lasting, and his sufferings therefrom acute. On the other hand, if the version of the appellant is to be taken as true, no recovery at all should be had. Its evidence was to the effect that the respondent provoked the assult, and that it occurred after he had ceased to be a passenger. Its evidence tended to show, also, that the injuries received by the respondent were trivial, entitling him to merely nominal damages, conceding the liability of the appellant to answer in damages at all. This being the condition of the record, it is plain that the question of liability was for the jury and the trial judge; and, since they have accepted the evidence of the respondent as containing the truth, we cannot do otherwise than accept it also. So with the question of the amount of the damages we can find no cause for a further reduction than that made by the trial court.

The exceptions to the instructions seem to us to have no substantial merit. The first exception is to the following 'But if you find in this case, gentlemen, that the plaintiff had alighted from the car at Hilliard before he was struck by the conductor, if you find he was struck by...