Mooney v. Carter

• Decision Date: 11 June 1945
• Docket Number: 15184.
• Citation: 114 Colo. 267,160 P.2d 390
• Parties: MOONEY v. CARTER.
• Court: Colorado Supreme Court

160 P.2d 390

114 Colo. 267

MOONEY v. CARTER.

No. 15184.

Supreme Court of Colorado, En Banc.

June 11, 1945

Error to District Court, City and County of Denver; Henry A. Hicks Judge.

Action for assault by T. F. Mooney against Betty Lemen Carter. To review a judgment for defendant, plaintiff brings error.

Reversed and remanded with instructions.

BAKKE C.J., and BURKE, J., dissenting.

Clarence L. Ireland, of Denver, for plaintiff in error.

William E. Hutton and Bruce B. McCay, both of Denver, for defendant in error.

STONE Justice.

On October 19, 1939, plaintiff in error, who was plaintiff below, was engaged as special policeman, without uniform, at Cheesman Park in Denver, which had been closed to automobile traffic by the police department on account of the summer opera. He had been stationed at the corner of Ninth avenue and Humboldt street and pursuant to instructions from his superior had put a barricade across the south half of Nonth avenue and in the center of the street the ordinary type of sign bearing the words 'Street Closed,' on a stand about thirty to thirty-five inches high. He had placed no barricade across the north side of the street because of instructions to let cars pass which were on their way to or from a large apartment house garage to which that street gave access. At about five o'clock in the afternoon defendant drove south on Humboldt street with her little boy beside her in a baby chair attached to the front seat of her coach automobile and made a left-hand turn east on Ninth avenue for the purpose of driving through the park. Although she admits seeing the barricade which was on the side of the street she should travel, she did not stop, but continued past the barricade easterly along Ninth avenue. Plaintiff, who stood at the northeast intersection corner, attempted to stop her and when she did not stop he ran to her car and climbed on the running board for the purpose of telling her that cars were not permitted in the park. She thereupon suddenly speeded up and swerved the car, throwing him off and causing him serious injuries. As a result, he brought action, charging assault and seeking damages for his injuries. Upon trial in the district court verdict was returned in his favor and judgment entered thereon. Defendant filed motion to vacate the judgment and for new trial, which was granted, and plaintiff has brought the matter here for review, asking that the verdict of the jury be reinstated together with the favorable judgment thereon.

The first question to be determined is whether, as urged by defendant in error, the order granting the new trial below was a matter within the discretion of the trial court. The motion therefor was based on the grounds that the evidence was not sufficient to support the verdict; that the verdict was against the evidence and the weight of the evidence; contributory negligence; error in refusing instructions; and insufficiency of plaintiff's complaint. At the time this motion was sustained, upon request of plaintiff and with the consent of defendant, the court ordered that plaintiff have ten days within which to elect whether to accede to a new trial or have a review by this court, and plaintiff elected to stand on his case as made.

We do not know upon what ground the court granted the new trial. If based upon any other ground than that of the sufficiency or weight of the evidence, it was not discretionary, and the correctness of the ruling is subject to review. If based upon the weight of the evidence, it ordinarily is within the discretion of the trial court and is not subject to review except where the evidence palpably supports the verdict and there has been a clear abuse of discretion: 'Where the ground of the application is insufficiency of the evidence to support the verdict; that the verdict is against the weight of the evidence; that it is unjust and inequitable, and the like,--a reasonable degree of discretion exists to allow or deny a new trial; and, when the questions involved in the application are close, the ruling of the court should not be interfered with. On the other hand, if the ground of the motion relied on does not in fact exist, or does not constitute a legal ground for a new trial, or the necessity for the application is the result of the applicant's negligence, the motion should be denied or the ruling held to be erroneous.' Clifford v. Denver, S. P. & P. R. Co., 12 Colo. 125, 129, 20 P. 333, 335. See also, Hurt v. Nelson, 85 Colo. 471, 276 P. 982; Crosby v. Canino, 89 Colo. 434, 3 P.2d 792.

'* * * such discretion is applicable to those cases only where the trial court has reasons peculiarly within its knowledge justifying the conclusion that the end of justice will be served by submitting the case to another jury.' Potter v. Great Northern Ry. Co., 167 Minn. 168, 208 N.W. 641.

The reasons for such rule are plain. First, that the trial court, from seeing and hearing the witnesses may have formed such a doubt as to the credibility of the testimony, or entertain such an impression from the surrounding circumstances and atmosphere of the trial, as to conclude that a fair and impartial trial was not had; and second, that the exercise of such power is not an invasion of the jury's function to decide the facts, for upon granting a new trial the questions of fact will again be submitted to a jury for decision.

In the case at bar, however, the second reason does not apply. If the judgment of the court below is sustained, there will be no retrial to a jury; plaintiff who asked for and received the favorable verdict of a jury will be compelled to accept in its stead the unfavorable judgment of the court. As was said by the court in Henrickson v. Smith, 111 Wash. 82, 189 P. 550, 552:

'* * * a litigant has the absolute right to have disputed questions of fact submitted to the determination of a jury. The appellate court, as well as the trial court, has power to see that such questions are properly submitted to the jury, and it is within the power of the trial court to set aside a verdict which he is convinced is contrary to the evidence and submit the disputed question to another jury. But this is the limit of the power. Judges of courts, cannot, without violating the fundamental law, substitute their opinions on disputed questions of fact for the opinion of juries, and enter judgments contrary to verdicts of such juries.'

This court long ago, in Wadsworth v. Union Pacific Ry. Co., 18 Colo. 600, 33 P. 515, 23 L.R.A. 812, 36 Am.St.Rep. 309, held that in such case as at bar the bringing of the whole record to this court for review, including the bill of exceptions containing all the testimony offered on the trial, clearly indicates that the intention of the parties was to treat the action of the trial court as though the court had dismissed the action or granted a nonsuit on the ground that plaintiff had failed to prove a sufficient case for the jury. Hence the court reviewed the cause according to the intention of the parties. In Ward v. Teller Res. & Irr. Co., 60 Colo. 47, 153 P. 219, we followed the rule announced in the Wadsworth case, and again affirmed it in Warshauer Sheep & Wool Co. v. Rio Grande State Bank, 81 Colo. 463, 256 P. 21. In the latter, two actions were brought below, one in conversion and the other in replevin. Verdicts for plaintiff were returned in both actions. Upon motions for new trial, both verdicts were set aside without reasons given. Upon election by plaintiff to stand by the cases as made they were dismissed. On error brought, the two cases were considered together and we found that the evidence was conflicting but that there was ample to support the verdicts returned. Therefore, the judgments below were reversed with instructions to overrule the motion for new trial and enter judgment in favor of plaintiff on the verdict in each case. Following, then, this well established rule, if there is substantial, though conflicting, evidence in the case at bar upon which the jury found in favor of plaintiff, this evidence must be considered in the light most favorable to plaintiff and in support of the verdict rather than in support of the final judgment below.

In support of that judgment, it is urged that defendant's actions did not constitute an assault. Plaintiff was engaged in the performance of his duty at...