Wiggins v. North Coast Transp. Co.

• Decision Date: 29 January 1940
• Docket Number: 27731.
• Citation: 2 Wn.2d 446,98 P.2d 675
• Parties: WIGGINS v. NORTH COAST TRANSP. CO.
• Court: Washington Supreme Court

98 P.2d 675

2 Wn.2d 446

WIGGINS v. NORTH COAST TRANSP. CO.

No. 27731.

Supreme Court of Washington

January 29, 1940

Department 2.

Action by Annie Wiggins against the North Coast Transportation Company to recover for injuries sustained while plaintiff was a passenger on one of defendant's buses. From a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from Superior Court, Snohomish County Lloyd L. Black, judge.

J Speed Smith and Henry Elliott, Jr., both of Seattle (J. L Rucker, of Everett, of counsel), for appellant.

John C. Richards and Earl W. Husted, both of Everett, for respondent.

JEFFERS, Justice.

This action was instituted by Annie Wiggins, against North Coast Transportation Company, to recover damages for personal injuries sustained while a passenger on one of the stages of defendant company. Trial to the court and jury resulted in a verdict in favor of plaintiff, and defendant company has appealed from a judgment entered on the verdict.

The complaint alleged that plaintiff was injured by the negligent operation of the stage, in suddenly stopping same with great force and violence, at a point about ten miles north of Marysville; and also alleged that plaintiff was injured by the negligent operation of the stage, in suddenly stopping it with great force and violence at a street intersection in the town of Marysville.

To this complaint, defendant interposed, among others, a motion to require plaintiff to separately state the causes of action contained in her complaint, contending that any injury claimed to have been sustained by plaintiff, by reason of the negligence of defendant, at the stop north ofMarysville and at the Marysville stop, constituted separate and distinct causes of action. The trial court denied the motion, and thereafter defendant answered and went to trial on the issues made by the pleadings.

After the evidence had all been submitted, the court took from the consideration of the jury any claimed negligence of defendant based upon the stop north of Marysville, and instructed the jury that they were to consider only the injury, if any sustained by plaintiff at the Marysville stop.

The jury returned a verdict in favor of plaintiff for ten thousand dollars. Motions for new trial and for judgment notwithstanding the verdict were timely made. The court denied the motion for judgment notwithstanding the verdict, and stated that it would grant the motion for new trial unless plaintiff, within three days, filed a written acceptance of a reduction of the verdict to six thousand dollars. Plaintiff filed such a written acceptance, and thereafter, on April 10, 1939, judgment was entered for six thousand dollars, and this appeal followed.

Appellant makes six assignments of error. Under the first assignment, it is contended the trial court erred in denying appellant's motion to require respondent to separately state the several causes of action set out in her complaint.

We cannot agree with respondent that the complaint is based on a breach of contract to safely carry respondent. Clearly, we think this is a tort action. See, 4 Williston on Contracts, Rev.Ed., 3170, § 1113; 9 Blashfield, Cyclopedia of Automobile Law, Permanent Edition, 4, § 5771; Compton v. Evans, Wash., 93 P.2d 341. However, we are of the opinion appellant's contention cannot be sustained, for the following reasons: By taking from the consideration of the jury any claimed negligence of appellant based upon the stop north of Marysville, and limiting the consideration of the jury to the negligence, if any, of appellant at the Marysville stop, and the injury, if any, resulting to respondent by reason of such stop, we think any error which might have resulted from a failure of the trial court to require respondent to separately state, was harmless. In addition to this, we think appellant waived any error based upon the refusal of the trial court to grant this motion, by answering the complaint and going to trial on the issues made by the pleadings. Port Townsend v. Lewis, 34 Wash. 413, 75 P. 982; Bishop v. T. Ryan Construction Co., 106 Wash. 254, 180 P. 126.

The cases of Hockersmith v. Ferguson, 51 Wash. 256, 98 P. 670, and Hockersmith v. Sullivan, 71 Wash. 244, 128 P. 222, cited by appellant, are not in point, for the reason that in the Ferguson case, the plaintiff, after a motion to require him to separately state had been granted, stood upon the complaint and refused to plead further. The Sullivan case involved the same issues and the same parties as the Ferguson case, and we held the Ferguson case was res adjudicata of all claims made in the Sullivan case.

We next desire to discuss appellant's assignments of error Nos. 5 and 6, which are based upon the refusal of the court to grant appellant's motion for judgment notwithstanding the verdict, and the entry of judgment for respondent. These assignments of error require a consideration of the evidence.

In passing upon a motion for judgment notwithstanding the verdict, we must not only accept as true all competent evidence in the record favorable to respondent, but also must give her the benefit of every favorable inference which may reasonably be drawn from such evidence. Vercruysse v. Cascade Laundry Co., 193 Wash. 184, 74 P.2d 920.

The testimony of respondent shows that on Christmas eve, 1937, she purchased tickets to Everett for herself and two grandchildren. The passenger traffic was heavy, and the regular bus to Everett being full, respondent and her grandchildren took a special bus, leaving Mount Vernon about six P. M. Respondent took the front seat on the left side of the aisle, immediately back of the driver. One of her grandchildren, Roland Scott Monroe, took the front seat across from his grandmother. It was a cold night, and the highway was covered with ice, and slippery. At a point about ten miles north of Marysville, the bus came into collision with a car driven by a Mrs. Nelson, and respondent was thrown to the floor, striking her left knee. However, she got up without assistance, and took her seat again. The facts relative to this accident are not in dispute, and the court took from the consideration of the jury any question of negligence of appellant based upon this stop, and any injury of respondent claimed as a result thereof. No error is predicated on the action of the trial court in withdrawing this matter from the jury.

It further appears from the evidence that after this accident, the bus proceeded towards Marysville. Respondent further testified that the bus was traveling about fifty miles an hour, in the town of Marysville, as it approached the intersection; that she saw the light as the bus approached it, and it was green; that the driver speeded up to about sixty miles, to pass through the intersection; that he did not pass through the intersection, but put on his brakes and came to a sudden stop, and respondent was thrown forward, striking her left knee against the back of the driver's seat; that her grandson, Roland Monroe, was thrown out of his seat on to his knees and against the front of the bus.

Roland Monroe, the twelve year old grandson, testified that the light was green when the bus was about four hundred feet away; that the bus speeded up to make the light, but the light turned red, and the bus came to a very sudden stop; that he was watching the speedometer, and that the bus was traveling forty-nine to fifty-five miles per hour in Marysville; that when the bus stopped, he was thrown to the floor on his knee, which started bleeding, his grandmother was thrown against the driver's seat, and the man on the seat beside him was thrown on to the step in front of the seat.

Harry Owens, a passenger on the bus, who was seated beside respondent, testified that he estimated the speed of the bus in Marysville at twenty-five miles per hour; that he did not notice that it speeded up Before reaching the light, but that it did stop abruptly, and Mrs. Wiggins was thrown forward and struck her knee against the metal back of the driver's seat; that respondent complained of her knee, and kept rubbing it all the way to Everett.

Vernon Ramnes, also a passenger on the stage, testified that he worked in a garage; that the bus was traveling around forty to fifty miles per hour in Marysville, just Before reaching the light; that the driver applied his brakes suddenly, and the bus skidded forward eight or ten feet, and stopped in a distance of ten to fifteen feet from the time the brakes were applied; that the witness went forward in his seat, but did not go out.

Marion La Fave, Madeline Boweran, William Hegwine, Grace Fenerborn, and Earl Lee, driver of the stage, all testified to the effect that the bus was being driven slowly, about twenty to twenty-five miles per hour, and that there was no other sudden stop after the one north of Marysville.

Upon this record, appellant contends there was shown no evidence of negligence upon the part of appellant at the Marysville stop, contending that the stop was a mere incident of travel, and that this case is within the rule that a carrier is not liable for ordinary jerks and jolts which are incident to travel. Appellant admits that it must exercise the highest degree of care compatible or consistent with the practical operation of its busses. It is apparent that the evidence is conflicting, both as to the speed of the bus in approaching the light, and as to the effect of the stop on the passengers.

A motion for judgment notwithstanding the verdict involves no element of judicial discretion. It can only be granted when the court can say, as a matter of law, that there is neither evidence nor reasonable inference from evidence to sustain the verdict. Karr v. Mahaffay, 140 Wash. 236, 248 P. 801...