Thornton v. Eneroth

• Decision Date: 27 December 1934
• Docket Number: 25338.
• Citation: 39 P.2d 379,180 Wash. 250
• Parties: THORNTON et ux. v. ENEROTH et al.
• Court: Washington Supreme Court

39 P.2d 379

180 Wash. 250

THORNTON et ux. v. ENEROTH et al.

No. 25338.

Supreme Court of Washington

December 27, 1934

Department 2.

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Action by John C. Thornton and wife against John N. Eneroth and others. Judgment for plaintiffs, and defendants John N Eneroth and wife appeal.

Affirmed.

For concurring opinion, see 48 P.2d 1120.

Floyd Foster, of Yakima, and Whittemore & Truscott, of Seattle, for appellants.

D. V Morthland and Harry L. Olson, both of Yakima, for respondents.

HOLCOMB Justice.

This is a second appeal after a third trial of the case. On the former appeal, reported in 30 P.2d 951, the case was heard en banc after a second hearing and the facts may be there found. It is unnecessary to again detail them here.

On a retrial the jury awarded a verdict in favor of respondent against appellants Eneroth and Harrison in the sum of $13,778. Harrison paid $5,000 and one-half of the costs in partial satisfaction of the judgment and has not appealed. Eneroth and wife alone appeal. It was stipulated by all parties that the payment of a portion of the judgment and costs by Harrison would not affect the rights of either appellants or respondents on this appeal except that the amount of the judgment against these appellants, if affirmed would be reduced by the extent of such payment.

Nineteen errors are assigned by appellants, almost all of which were decided adversely to them in the former decision.

Upon the retrial the parties and the trial court were all bound by the law as made by the decision on the other appeal. On appeal therefrom, the parties and this court are bound by that decision unless and until authoritatively overruled. Baxter v. Ford Motor Co. (Wash.) 35 P.2d 1090. The majority are not disposed to overrule or recede from the former decision.

On this appeal appellants assert (1) that Eneroth was not negligent; (2) that his negligence, if any, could not have been the proximate cause of the injuries complained of; (3) that if negligent, Eneroth could not have been a joint tort-feasor with the other defendants in causing the injuries complained of; and (4) that the plaintiff was, as a matter of law, guilty of flagrant contributory negligence, barring any recovery for such injuries.

All of the above points were matters of fact for the jury to decide under our former decision and which the jury resolved against appellants.

The only new case cited by appellants, in addition to those cited by the several appellants on the former appeal, is Gooschin v. Ladd (Wash.) 33 P.2d 653, where we also held that the question of plaintiff's contributory negligence was for the jury and we consider this a stronger case for the jury on the facts as to the contributory negligence of respondents, than that.

The only instance pointed out by appellants as being 'substantially different' in the facts on the retrial than on the former trial is in the testimony of Eneroth, when testifying on his own behalf, that 'a gust of wind, or something, closed up everything on the car so I couldn't look through'; that he cleaned off a small space where the swipe operated when he stopped near the city limits by putting his hands on the inside of the windshield and letting the swipe operate; and that all the rest of the windshield was covered by ice. The fact that a gust of wind, or something, closed up everything on the car is very indefinite and insubstantial. Eneroth was an interested witness and the jury had the right to disbelieve that testimony because of its uncertainty, or on any other ground. It does not constitute a substantial difference in the evidence.

Exceptions were taken to the giving and refusal of a number of instructions. Forty-three instructions in all were given by the trial court, nine of which covered more or less formal matters. Appellants proposed...