Norland v. Peterson

• Decision Date: 23 August 1932
• Docket Number: 23809.
• Citation: 13 P.2d 483,169 Wash. 380
• Parties: NORLAND v. PETERSON et ux.
• Court: Washington Supreme Court

13 P.2d 483

169 Wash. 380

NORLAND v. PETERSON et ux.

No. 23809.

Supreme Court of Washington

August 23, 1932

Department 2.

Appeal from Superior Court, King County; William A. Huneke, Judge.

Action by Anton Norland against Harry Peterson and Lucy Peterson his wife. From the judgment, plaintiff appeals.

Affirmed.

Frank E. Boyle and George F. Hannan, both of Seattle, for appellant.

Kahin &amp Carmody and Paul Coughlin, all of Seattle, for respondents.

MAIN J.

This action was brought to recover damages for personal injuries and was tried to the court and a jury. After a verdict in favor of the plaintiff in the sum of $590 the plaintiff moved for a new trial, which motion was overruled, and judgment was entered upon the verdict, from which he appeals.

The accident out of which the litigation arose happened January 1, 1931, at about 7 o'clock p. m., in the city of Seattle, on or near what is known as the Montlake bridge. The appellant was proceeding south in a Ford coupé owned and driven by one Peter Sylte. A Plymouth sedan owned by the respondents and driven by Harry Peterson, who will be referred to as though he were the only party on that side of the controversy, was proceeding north. According to the testimony of the appellant and his witnesses, the car driven by Peterson turned to its left-hand side of the road, and the two automobiles came together in a head-on collision. It is for injuries sustained in this collision that the appellant seeks damages. The injuries consisted, as he testified, of six big cuts on his face and some smaller ones. According to the testimony of the doctors, he also sustained a fractured or broken right kneecap.

It is first contended that the verdict was contrary to the weight of the evidence, in that it was inadequate in amount and the trial court abused its discretion in denying the motion for new trial for this reason, and also because the size of the verdict indicated passion and prejudice on the part of the jury. The evidence of the doctors called by the respective parties as to the extent of the injury to the kneecap was directly in conflict. The doctor called by the appellant testified that that injury was permanent, and the doctors called by the respondent testified that it was such that the appellant could have resumed his occupation within a period varying from four or five weeks to two or three months. The appellant also called a number of nonexpert witnesses, who had had an opportunity to observe his condition, and they testified with reference thereto.

The appellant was a fisherman, and from about June to October of each year engaged in that occupation. When not so engaged, he did odd jobs as a laboring man.

The granting or refusing to grant a motion for new trial is discretionary with the trial court, except where pure questions of law are involved, and this court will not interfere with the ruling of the trial court upon such a motion, unless it can be said from the record that that court abused its discretion. Danielson v. Carstens Packing Co., 115 Wash. 516, 197 P. 617. Other cases might be cited, but the rule is so well settled that it is unnecessary here to multiply the citations.

The trial court, in passing upon a motion for new trial based upon the ground that the verdict of the jury is inadequate or excessive, will consider the evidence, and, if that court is of the opinion that substantial justice has not been done, it will, in the exercise of its duty, grant a new trial. Daigle v. Rudebeck, 154 Wash. 536, 282 P. 827. But the function of this court is different, and the ruling of the trial court upon the motion will not be disturbed upon appeal, unless it can be said that the verdict is so far inadequate or so excessive as to be without support in the evidence, or it must appear that the verdict was the result of some extrinsic consideration, such as bias, passion, or prejudice on the part of the jury. Dorian v. Boone, 152 Wash. 681, 279 P. 107.

The evidence as to the extent of the appellant's injury to his knee, as above pointed out, was directly in conflict. The trial court, in passing upon the motion for new trial, weighed this evidence, as was its duty, and denied the motion, and it cannot be said from the record that in so doing it abused its discretion. Neither can it be said from the record that the jury, in fixing the amount of the verdict at the sum they did, were actuated by passion or prejudice. Conceding that the law, as stated in the case of Aboltin v. Heney, 62 Wash. 65, 113 P. 245, is applicable to the case now Before us, it would tend to support the judgment rather than to cause its reversal. There the trial court sustained the motion for a new trial for the reason that the damages were inadequate, and, upon appeal, the order granting the new trial was affirmed on the ground that the trial court had not abused its discretion. In that case, the trial court exercised its discretion and granted the motion, while in the present case the trial court, in the exercise of its discretion, denied the motion.

It is next contended that the court erred in refusing to give an instruction requested by the appellant, to the effect that when it develops in the course of a trial that there are witnesses available to one party or the other, who, if called, could testify to material...