Humphreys v. City of Seattle ( 1929 )

ON REHEARING. [Department Two. November 1, 1929.] A petition for rehearing having been filed in this cause, the court is now of the opinion that a wrong rule of law was stated in the last paragraph of the opinion.

[2] The rule therein stated is amply supported by some of the earlier decisions of this court, but beginning with the case of Grass v. Seattle, 100 Wash. 542, 171 P. 533, and followed in numerous later cases, this court has now adopted the rule that, when a motion for a new trial is granted and an appeal taken therefrom, even though the motion for a new trial may have been properly granted on certain specified grounds, yet the appellant may raise, and the court will consider, the question as to whether or not there was sufficient evidence to go to the jury. We have therefore again carefully examined the record in this case.

[3] The plaintiff testified that she was thrown violently to the floor because of the sudden jerk or lurching of the street car which she had boarded, and that this sudden jerk or lurching took place before she had an opportunity to secure a seat. She testified fully and completely, not only as to the nature and extent of the injuries which she suffered, but also as to the fact that this was a sudden, unexpected, violent and unusual jerk of the car, and that it was this which threw her down and caused the injuries. A number of witnesses testified to the contrary. Under such a state of facts, a directed verdict would not have been proper, nor would a judgment non obstante veredicto have been permitted to stand.Caughren v. Kahan, 86 Wash. 356, 150 P. 445; Payzant v.Caudill, 89 Wash. 250, 154 P. 170.

The utmost that the court can do under such circumstances is to grant a new trial in case the trial court believes that the evidence perponderates against the verdict of the jury. As thus modified, the original opinion will stand.