Morehouse v. City of Everett

• Decision Date: 03 September 1925
• Docket Number: 19275.
• Parties: MOREHOUSE v. CITY OF EVERETT.
• Court: Washington Supreme Court

238 P. 897

136 Wash. 112

MOREHOUSE v. CITY OF EVERETT.

No. 19275.

Supreme Court of Washington

September 3, 1925

Department 1.

Appeal from Superior Court, Snohomish County; Bell, Judge.

Action by Edith M. Glick Morehouse against the City of Everett. From an order granting plaintiff a new trial, defendant appeals. Affirmed.

O Duncan Anderson and J. W. Dootson, both of Everett, for appellant.

Wm. A Johnson, of Everett, for respondent.

PARKER, J.

The plaintiff, Mrs. Morehouse, for herself and the three minor children of herself and deceased husband, seeks recovery of damages for his death caused, as she alleges, by the city's negligent obstruction of Grand avenue, one of its principal streets, in that it caused the paved roadway of that avenue to be obstructed by a dwelling house being moved thereon, and which was left during the darkness of the nighttime without displaying sufficient lights warning drivers of automobiles and other vehicles upon the avenue thus causing the deceased, without fault on his part, to drive his automobile against and partially under the dwelling house, resulting in his death. A trial upon the merits in the superior court for Snohomish county sitting with a jury resulted in a verdict in favor of the city, absolving it from liability. Counsel for the plaintiff thereupon timely moved for a new trial on several of the statutory grounds, among others, a claim of error on the part of the trial court in giving a certain instruction, and also a claim of error on the part of the trial court in refusing to award a new trial upon the ground of the verdict being against the weight of the evidence. The motion for a new trial was granted and a formal order entered by the court accordingly, from which the city has appealed to this court.

There is in the clerk's transcript brought here, but not appearing by the statement of facts, a paper signed by the trial judge, which, as we view it, is simply an opinion expressing his views on the motion for a new trial wherein he discusses only respondent's claim of error in the giving of a certain instruction. This ruling or opinion concludes with these words:

'The motion for new trial will be granted on account of error in the giving of this instruction.'

On the following day a formal order was entered accordingly, the whole of the body of which reads as follows:

'The above-entitled cause having come on for hearing before the court upon the plaintiff's motion for new trial, the plaintiff appearing by Wm. A. Johnson, her attorney, and the defendant appearing by O. Duncan Anderson and J. W. Dootson, its attorneys, and after argument thereon the court being fully advised in the premises, it is ordered that the said motion be granted.'

It is thus rendered apparent that this final order is general and unrestricted in its terms as to the grounds upon which the court awarded a new trial and does not in the least disclose or suggest that the court awarded a new trial exclusively upon the ground of error in the giving of the instruction complained of.

In the early leading case of Rotting v. Cleman, 12 Wash 615, 41 P. 907, Judge Anders, speaking for this court, said:

'Where the record

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