Wood v. Hallenbarter

• Decision Date: 27 February 1942
• Docket Number: 28527.
• Citation: 12 Wn.2d 576,122 P.2d 798
• Parties: WOOD et al. v. HALLENBARTER.
• Court: Washington Supreme Court

122 P.2d 798

12 Wn.2d 576

WOOD et al. v. HALLENBARTER.

No. 28527.

Supreme Court of Washington

February 27, 1942

Department 2.

Action to recover damages sustained in an automobile collision by D B. Wood and another against Louis Hallenbarter, wherein defendant filed a cross-complaint. From an order granting a new trial to defendant after verdict in defendant's favor but allowing no damages, plaintiffs appeal.

Affirmed.

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

George Bovingdon, of Seattle, and James V Ramsdell, of Tacoma, for appellants.

A. O Burmeister and E. F. Freeman, both of Tacoma, Shank, Belt, Rode & Cook, of Seattle, and Martin L. Potter, of Tacoma, for respondent.

BLAKE Justice.

This action grows out of a collision which occurred August 8, 1940, on the Tacoma-Sumner highway, between a loaded logging truck and trailer owned by plaintiffs and driven by plaintiff D. B. Wood and a Plymouth sedan owned and driven by defendant, Hallenbarter. The truck was traveling westerly toward Tacoma; the sedan, easterly toward Sumner. The accident occurred on a curve. After the collision, the sedan came to rest in the middle of the highway, and the truck and trailer, with its load, came to rest in a field on the southerly side of the highway; in other words, the truck and trailer went off the road on the side to its left.

Plaintiffs instituted this action to recover for damage to the truck and trailer and for loss of its use while being repaired. They charged defendant with negligence in several particulars, among which was that, just Before and at the time of collision, he was driving on the wrong (his left) side of the road. Defendant answered and, by way of cross-complaint, sought damages for injuries to himself and his car. Among other charges of negligence made by him was that the truck was being driven on the wrong (its left) side of the road. The cause was tried to a jury, which returned a verdict in form for defendant but allowing him no damages. He interposed a motion for new trial, which was granted 'upon the ground that substantial justice has not been done in this case by the verdict of the jury.' From the order granting new trial, plaintiffs appeal.

In Getty v. Hutton, 110 Wash. 429, 188 P. 497, this court said:

'This court, in a great many cases, has held that the lower court is vested with discretion to grant or deny a motion for a new trial, and when that judgment is entered it will not be disturbed on appeal, unless it is shown that there was a manifest abuse of such discretion. * * *

'The case of Funk v. Horrocks, 99 Wash. 397, 169 P. 805, shows the firmness with which we adhere to and follow the rule that we will not interfere with the discretion of the trial court in granting a new trial, unless we can say there was a manifest abuse of discretion. In that case a new trial was granted by the trial court on account of insufficiency of the evidence, and while we stated that, after a careful reading of the testimony, we were inclined to disagree with the view that the evidence was in any respect insufficient, but were emphatically of the opinion that it was sufficient to justify the verdict, yet we refused to set aside the order granting the new trial.'

Appellants have cited a number of cases in which this court has sustained orders denying motions for new trial upon conflicting evidence--implying, as we infer, that, if it is not an abuse of discretion to deny a...