Larson v. City of Seattle

• Decision Date: 06 July 1946
• Docket Number: 29924.
• Court: Washington Supreme Court
• Parties: LARSON v. CITY OF SEATTLE.

171 P.2d 212

25 Wn.2d 291

LARSON v. CITY OF SEATTLE.

No. 29924.

Supreme Court of Washington, En Banc.

July 6, 1946

Action by Bertha Larson against the City of Seattle for personal injuries sustained in a fall while alighting from a city bus. From a judgment granting defendant's motion for new trial after verdict for plaintiff, plaintiff appeals.

Reversed with instructions to enter a judgment upon the verdict.

Appeal from Superior Court, King County; Robert M. Jones, judge.

Guy B Knott and W. R. McKelvy, both of Seattle, for appellant.

A. C Van Soelen and Arthur Schramm, both of Seattle, for respondent.

SIMPSON Justice.

Plaintiff brought action against the City of Seattle for personal injuries. Trial to a jury resulted in a verdict in favor of plaintiff. Defendant filed a motion for new trial upon the grounds of irregularity in the proceeding of the court, jury or adverse party; excessive damages which indicated passion or prejudice on the part of the jury; that there was no evidence or reasonable inference from the evidence to justify the verdict, and error of law occurring at the trial. The court granted the motion on the sole and specific ground that he had made an error in the giving of one instruction. Plaintiff in appealing to this court has assigned as error the granting of a new trial.

The evidence relative to the accident was in dispute. Appellant's evidence showed that she was a passenger upon a Seattle bus July 27, 1944. Just after she rang the buzzer for a stop, the bus stopped in the middle of a gravel street or road, and then moved to the curb, a place where it was some considerable distance from the bus, or the bus steps, to the ground. Where she alighted, the ground was covered with rocks and gravel. When she started to get off the bus, it was moved and she was thrown to the ground where she suffered severe injuries by falling upon rocks. The place where the bus stopped was about ten feet from its usual stopping place.

The evidence produced by respondent presented its view of the facts as follows: The city bus stopped at its usual stopping place, and did not move while appellant was getting to the ground. The ground or portion of the street where she alighted was covered with fine gravel, and there were no large stones or rocks beneath the bus step. Appellant fell after alighting, and after having taken one, two, or three steps.

The instruction in question reads as follows:

'You are instructed that if you find from a fair preponderance of the evidence that the bus was standing on substantially higher ground than that upon which plaintiff had to step in order to get off the bus, and if you find that because of this condition a person in the exercise of ordinary care might have stumbled and fallen down to his injury, then the plaintiff was not guilty of contributory negligence in falling down while getting off said bus.'

The trial court decided that he should have used the word 'would' instead of the word 'might.'

Numerous cases have been decided touching upon the use of these words in instructions. No good would be served in discussing all of them. We are of the opinion that the word 'might' used in the instruction was entirely correct. It is not necessary for us to inquire into the potentialities of the two words. The word 'might' is the preterit of the word 'may' and is equivalent to 'had power' or 'was possible.' The word 'might,' as defined by Webster, denotes not alone a possibility, but also ability and capability. Lewiston Milling Co. v. Cardiff, 9 Cir., 266 F. 753.

In an action for assault on a passenger by fellow passengers, an instruction stated to the jury that the duty of the conductor was to protect the party assaulted if he 'anticipated that such assault might be made.' It was held not to be error to use the word 'might' instead of 'would' since the law requires that a carrier use the highest degree of diligence to protect passengers from assault which may reasonably be anticipated, and that the word 'might' was used in the place of 'may' when referring to past time, or to a past event. Louisville Ry. Co. v. Wellington, 137 Ky. 719, 126 S.W. 370, 128 S.W. 1077.

Respondent contends that the court erred in other particulars, and insists that we consider them, in view of our repeated holding that in cases in which a new trial is granted on a specific ground and the adverse party appeals, the respondent may urge in support of the motion any grounds set out therein, and this court will not reverse if the order can be sustained on any ground set out in the motion. Respondents are met with the contrary holding in the recent case of State v. Bauers, 23 Wash.2d 462, 161 P.2d 139, 140.

In the Bauers case this court had Before it a motion for a new trial upon five of the statutory grounds mentioned in Rem.Rev.Stat. § 2181, among which was specified subd. 5, referring to error of law occurring at the trial and excepted to by the defendant. The trial court granted the motion upon the following grounds and no other:

"1. That the Court erred in submitting to the jury the issue of the guilt of the Defendant of murder in the second degree, the Court being of the opinion that the evidence did not justify the submission of second degree murder for the reasons set forth more fully in the Court's oral decision.

"2. That Plaintiff's attorney was guilty of misconduct in his closing argument to the jury by making remarks concerning the testimony of certain Seattle police officers, which remarks were prejudicial to the defendant, for the reasons set forth more fully in the Court's oral decision."

In passing upon the issue presented, we stated:

'When a motion for a new trial is granted upon specific grounds, stated in the order, the only question on appeal is whether such grounds are sufficient in law to justify the court in granting a new trial. If the grounds stated in the order are insufficient in law to sustain it, the order cannot stand. This court will not search the record to ascertain whether the order granting a new trial might be sustainable on other grounds or under the discretionary power of the court. Gardner v. Lovegren, 27 Wash. 356, 67 P. 615; Gray v. Washington Water Power Co., 27 Wash. 713, 68 P. 360; Lawrence v. Pederson,

34 Wash. 1, 74 P. 1011; Grant v. Huschke, 70 Wash. 174, 126 P. 416.

'The scope of the appeal being thus limited, we are called upon to determine only (1) whether, under Rem.Rev.Stat., § 2181, 'error of law,' requiring that a new trial be granted, was committed by submitting second-degree murder to the jury; and (2) whether the misconduct of counsel, under the record made, constitutes a ground for granting a new trial.'

The rule relative to this question was announced in Rochester v. Seattle, Renton & S. R. Co., 75 Wash. 559, 135 P. 209, 210. In that case it was stated by this court:

'In cases where the subordinate or trial court upon motion has entered an order granting a new trial upon a specific ground and an appeal follows, the great weight of authority is that the party in whose favor the order was entered may, upon appeal therefrom by the adverse party, urge any ground in support of the order which was covered by the motion, and that the appellate or reviewing court, even though it be of the opinion that the order cannot be sustained upon the specific ground stated or reason given by the trial court will not reverse the order if it can be sustained upon any legal ground. Nally v. McDonald, 77 Cal. 284, 19 P. 418; Sherwood v. Kyle, 125 Cal. 652, 58 P. 270; Kauffman v. Maier, 94 Cal. 269, 29 P. 481, 18 L.R.A. 124; Hewitt v. Steele, 118 Mo. 463, 24 S.W. 440; Shanklin v. Hall, 100 Cal. 26, 34 P. 636; Morrow v. St. Paul City R. Co., 65 Minn. 382, 67 N.W. 1002; Enc. Pl. & Pr., vol. 2, p. 373; Lovell v. Davis, 52 Mo.App. 342; Ittner v. Hughes, 133 Mo. 679, 34 S.W. 1110. The principle which runs through all of these cases is that where the trial court grants a motion for a new trial upon a specific ground, and there is an appeal therefrom, the reviewing court may consider all the grounds of the motion in determining the correctness of the ruling. This principle appears to us to be not only sound in reason but just in its practical operation. If the appellate court is limited in passing upon an appeal from an order granting a new trial to the ground stated in the order, and it should believe that ground untenable, then the order must be reversed, and, after the trial court has entered a judgment of reversal, a second appeal may follow to determine whether the other grounds of the motion may not be well taken. This entails upon litigants unnecessary expense and delay, and in some cases would work serious injustice. The cause upon the second appeal would be Before the appellate court upon identically the same record as upon the first. From no just point of view can a rule of practice which unnecessarily prolongs the litigation and increases the expense thereof be upheld. So far as we are informed, there are no authorities out of harmony with the rule above stated, except the previous holdings of this court. In the cases of Gray v. Washington Water Power Co., 27 Wash. 713, 68 P. 360; Id., 30 Wash. 154, 70 P. 255; Lawrence v. Pederson, 34 Wash. 1, 74 P. 1011; Allen v. Northern Pac. R. Co., 35 Wash. 221, 77 P. 204, 66 L.R.A. 804; and Armstrong v. [William] Musser Lumber & Mfg. Co., 43 Wash. 584, 86 P. 944--it has been held that, where the motion for new trial was granted upon a specific ground, that this court upon an appeal would consider only the ground stated by the trial court for its ruling, and would not consider the other grounds covered by the motion. These decisions are, in our opinion, supported neither by good reason nor authority and are...