Sherman v. Mobbs
| Decision Date | 03 December 1959 |
| Docket Number | No. 34971,34971 |
| Citation | 55 Wn.2d 202,347 P.2d 189 |
| Court | Washington Supreme Court |
| Parties | James C. SHERMAN, Respondent, v. Lewis MOBBS and Helen Mobbs, husband and wife, and Robert D. Warren, Appellants. |
Parker & Parker, Aberdeen, Trullinger & Lindskog, Olympia, for appellants.
James J. Solan, Jack L. Burtch, Aberdeen, for respondent.
This is a negligence action, arising out of a motor vehicle collision which occurred on April 24, 1957 at the intersection of 23d street and Simpson avenue in the city of Hoquiam. The principal allegation of the plaintiff was that the accident was caused by the negligence of the defendant Robert D. Warren in failing to yield the right of way and driving into the intersection against the traffic control signal. The defendants denied that Warren, driver of a truck owned by the defendants Mobbs, was negligent and alleged affirmatively that the accident was caused by the plaintiff's failure to yield the right of way in accordance with the traffic signal.
As a result of the accident, the plaintiff's automobile required replacement of the left headlight, bumper, and grill at a total cost of $101.13. Damage to the defendants' vehicle was negligible, consisting of a dent in the side of the right front fender, which had not been repaired at the time of the trial. The defendants did not cross-complain.
The principal items of damage claimed by the plaintiff were for personal injuries alleged to have been suffered by him as a result of the collision. Following the accident, the plaintiff was hospitalized with severe pains in his lower back, which were later found to be caused by a ruptured disc, for which he underwent major surgery and as a result of which he was permanently disabled. He also attributed pains which developed in his shoulder to injuries which he allegedly received in the accident. He alleged that he had recovered completely from prior back injuries at the time of the accident and attributed all of his disabilities, pain, and suffering following the accident to that cause.
Upon conflicting evidence, the jury returned a verdict in favor of the defendants. The plaintiff moved for a new trial, which the court granted, expressing the belief that it had erred in giving its instruction No. 11, concerning the burden of proof, which the court felt was in substance the same as an instruction which was disapproved by this court in the recent case of Dods v. Harrison, 51 Wash.2d 446, 319 P.2d 558, 560. The defendants have appealed from the order granting this motion.
The case of Dods v. Harrison, supra, arose out of an accident very much like the one which occurred in this case that is, an intersection collision where there was a conflict in evidence as to which driver had the right of way. After instructing the jury that the burden was upon each party to prove, by a fair preponderance of the evidence, his affirmative allegations, the court told the jury:
'You are instructed that if, after a full consideration of all the facts in this case, you are unable to find from a preponderance of the evidence whose negligence, if anyone was negligent, was the direct and proximate cause of the injuries complained of, then the plaintiff is not entitled to recover damages, and your verdict should be for the defendants.'
It was argued in the Dods case that the instruction was a mere paraphrasing of the rule that unless the plaintiff establishes his case by a fair preponderance of the evidence, he is not entitled to recover. However, this court felt that, in view of the fact that the evidence was in sharp conflict, the instruction, using as it did the phrase, 'if * * * you are unable to find,' might tend to mislead the members of the jury into thinking that a verdict for the defendants was required if they were unable to agree upon the cause of the accident. The instruction, as this court understood it, advised the jury,
The plaintiff in this case maintains that instruction No. 11, likewise, tended to confuse the jury and to encourage it to abdicate its function. Instruction No. 11 reads:
'You are instructed that if, after a consideration of all the evidence in this case, you find that the evidence of the plaintiff and that of defendants are evenly balanced, and that neither plaintiff nor defendants have satisfied you by a fair preponderance of the evidence of the correctness of their respective positions, then the plaintiff has failed in the burden of proof which rests upon him in this case, and your verdict must be for the defendants.
'You are also instructed that no verdict for the plaintiff can be based upon speculation or any finding by you as to what may have happened, but must be based upon a finding by you supported by a fair preponderance of the evidence of what did, in fact, happen.'
In the first place, this instruction uses the affirmative language, 'if you find,' while in the Dods case the negative 'if * * * you are unable to find,' was used. The plaintiff does not deny that it correctly states the law (see Hale v. Crown Columbia Pulp & Paper Co., 56 Wash. 236, 105 P. 480, and Chase v. Beard, Wash., 346 P.2d 315, approving instructions almost identical to this instruction), but he contends that, like the instruction given in the Dods case, it was likely to be understood by the jury as an instruction to find for the defendants in case they were unable to agree upon a verdict. But we do not find the instruction open to that criticism. The jury were told in another instruction that ten of their number must agree upon a verdict; they were told in instruction No. 10 that the plaintiff had the burden of proving his allegations and that the defendants had...
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State v. Bertrand
...the appellate rules but to the rules of civil and criminal procedure and decisional law. See, e.g., CR 46, CrR 8.7; Sherman v. Mobbs, 55 Wash.2d 202, 347 P.2d 189 (1959). ER 103, cmt. 103 at 91 Wash.2d 1124 (1979). And in a footnote, the Supreme Court in State v. Scott, 110 Wash.2d 682, 687......
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State v. Atkinson
...to make a timely objection and by raising the issue himself. State v. Huson, 73 Wash.2d 660, 440 P.2d 192 (1968); Sherman v. Mobbs, 55 Wash.2d 202, 347 P.2d 189 (1959). Defendant next raises the issue of whether the trial court's instructions on self-defense violate the constitutional princ......
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State v. Bebb
...urge trial objections for the first time in a motion for new trial or appeal. Hoff, at 812, 644 P.2d 763 (citing Sherman v. Mobbs, 55 Wash.2d 202, 207, 347 P.2d 189 (1959)). As previously discussed, Mr. Peven noted on the record that the court's ruling would terminate Mr. Bebb's ability to ......
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State v. Hoff
...if the verdict is adverse, urge his trial objections for the first time in his motion for new trial or appeal; (Sherman v. Mobbs, 55 Wash.2d 202, 207, 347 P.2d 189 (1959)); neither may a pro se defendant. In short, a pro se defendant is simply not entitled to special Although the trial cour......