Stuckrath v. Schwarz

• Decision Date: 08 August 1941
• Docket Number: 28300.
• Citation: 10 Wn.2d 1,115 P.2d 974
• Parties: STUCKRATH et ux. v. SCHWARZ et al.
• Court: Washington Supreme Court

115 P.2d 974

10 Wn.2d 1

STUCKRATH et ux. v. SCHWARZ et al.

No. 28300.

Supreme Court of Washington

August 8, 1941

Department 1.

Action by Floyd H. Stuckrath and Helen Stuckrath, his wife, against Lee Schwarz and Caroline Schwarz, for injuries sustained in an automobile collision. Trial to a jury resulted in a verdict in favor of defendants. From an order granting plaintiffs a new trial, defendants appeal.

Order affirmed.

Appeal from Superior Court, King County; Hugh C Todd, Judge.

DuPuis & Ferguson, of Seattle, for appellants.

Will G Beardslee and George F. Ward, both of Seattle, for respondents.

BLAKE Justice.

Plaintiffs brought this action to recover damages for injuries sustained by the wife in a collision with an automobile owned by defendant Caroline Schwarz and driven by defendant Lee Schwarz. The cause was tried to a jury, which returned a verdict in favor of defendants. Upon motion of plaintiffs the court entered an order granting a new trial, from which defendants have appealed. The order was couched in general terms: 'It is ordered, that plaintiffs' motion for a new trial is hereby granted and the verdict heretofore rendered by the jury be and the same is hereby set aside.'

This court will review such an order only for manifest abuse of discretion. Rotting v. Cleman, 12 Wash. 615, 41 P. 907; Clark v. Great Northern R. Co., 37 Wash. 537, 79 P. 1108, 2 Ann.Cas. 760; Stickney v. Congdon, 140 Wash. 670, 250 P. 32. In reviewing an order granting a motion for new trial, couched in general terms, this court will presume that it was granted on any ground which would justify its entry, notwithstanding the trial court, in an oral or memorandum opinion, may have based it upon some specific ground. Morehouse v. Everett, 136 Wash. 112, 238 P. 897; Shook v. Hughes, 146 Wash. 134, 262 P. 142; Applewhite v. Wayne, 152 Wash. 62, 277 p. 84; In re Rubens' Estate, 192 Wash. 571, 74 P.2d 204.

While the trial court may not substitute its opinion for that of the jury upon conflicting evidence ( Franey v. Seattle Taxicab Co., 80 Wash. 396, 141 P. 890), it may, and should, grant a new trial if it believes the verdict is against the weight of the evidence and that substantial justice has not been done. Scribner v. National Refining Co., 169 Wash. 44, 13 P.2d 61; Brammer v. Lappenbusch, 176 Wash. 625, 30 P.2d 947; Nagle v. Powell, 3 Wash.2d 215, 105 P.2d 1. In the Lappenbusch case [176 Wash. 625, 30 P.2d 949], the court said: 'All of our decisions have proceeded upon the principle that, if the trial court, in the exercise of its sound discretion, is satisfied that substantial justice has not been done in a given case, it is its right and its duty to set the verdict aside.'

In the light of these well-established rules, we shall discuss the evidence as the trial court may have viewed it. While appellants suggest that the evidence fails to establish negligence on their part, we think the trier of the facts would hardly be warranted in concluding that the collision was not due to the negligence of Lee Schwarz. He ran into the rear of respondents' car traveling in the same direction. Nor do we think there is any substantial evidence to charge Mrs. Stuckrath with contributory negligence. So the trial court may well have thought that appellants were legally responsible for whatever damages she may have sustained.

About two months prior to the collision, which occurred September 13 1939, Mrs. Stuckrath had undergone an operation for the correction of a retroverted uterus. In her complaint, she alleged that the collision caused a retroversion of her uterus. She again underwent...