Molitor v. Blackwell Motor Co.

• Decision Date: 23 August 1920
• Docket Number: 15838.
• Citation: 112 Wash. 279,191 P. 1103
• Court: Washington Supreme Court
• Parties: MOLITOR v. BLACKWELL MOTOR CO. et al.

191 P. 1103

112 Wash. 279

MOLITOR v. BLACKWELL MOTOR CO. et al.

No. 15838.

Supreme Court of Washington

August 23, 1920

Department 1.

Appeal from Superior Court, Spokane County; Bruce Blake, Judge.

Action by Edward Molitor against the Blackwell Motor Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Robertson Miller & Robertson, of Spokane, for appellant.

McCarthy & Edge, of Spokane, for respondent.

TOLMAN J.

This action was brought to recover for personal injuries sustained by the appellant, plaintiff below, in a collision between a bicycle ridden by him and an automobile belonging to the defendant, who is respondent here. The case was tried to a jury, which rendered a verdict for the defendant, and this appeal is from a judgment thereon.

The errors assigned and relied upon, are: (1) Denial of a motion for a new trial; and (2) the giving and refusing of instructions to the jury.

The motion for a new trial, among other grounds is based upon newly discovered evidence, which is the only ground urged here, and supported by an affidavit, showing that such evidence relates solely to the question of whether or not the appellant had a headlight burning on his bicycle such as was required by the ordinance of the city of Spokane at the time of the accident. This question was made a direct issue by the pleadings and was one of the principal issues at the trial. Appellant testified that he had such a headlight properly equipped and burning; his wife testified that the bicycle was so equipped, and that the light was burning when appellant left his home on the bicycle a few minutes before the accident occurred; the bicycle dealer, from whom the bicycle had been purchased some two or three months before, testified that, when he sold it, it was fully equipped with a regulation bicycle headlight; and a witness who worked with appellant testified that on the night preceding the accident he had observed the headlight on the bicycle, and as a matter of curiosity had turned it on and off several times, and found it then to be in perfect order. Other witnesses on both sides saw no light on the bicycle, and there was testimony on the part of the defense that an examination immediately after the accident showed no batteries or wires attached to the bicycle, or about the place where the accident occurred. The affidavits in support of the motion for a new trial show that one Eder, who was well acquainted with appellant, met him just before the time of, and...