Bracy v. Lund , 197 Wash. 188 ( 1938 )

I concur in the view expressed by Blake, J., that, by the majority opinion, this court has invaded the province of the jury.

We held in Burson v. Blackwell, 184 Wn. 669,52 P.2d 351, that a verdict is conclusive as to questions of fact properly submitted to the jury, and in reviewing a verdict our inquiry is limited to whether there was substantial evidence to take the case to the jury. See, also, 2 R.C.L. 193, 194.

If verdict is based on conflicting evidence, that of the prevailing party must be taken as true, as well as all reasonable inferences deducible from such evidence. Edwards v. Seattle etc.R. Co., 62 Wn. 77, 113 P. 563.

"On a challenge to the sufficiency of the evidence to support the verdict, the question presented on appeal is, admitting the truth of all the evidence of the plaintiff, together with such inferences and conclusions as may reasonably be drawn therefrom, and eliminating all evidence of defendant in conflict with plaintiff's evidence, and all opposing inferences, whether there is any competent evidence tending to support the verdict against the defendant." 3 Am. Jur. 444, § 887.

In other words, the rule to which we are committed is that we will, in determining the sufficiency of the evidence, assume as true that version of the evidence which supports the verdict.

We must, to reverse the judgment — but how can we, on the record before us — say that there is neither evidence nor reasonable inference from the evidence to justify the verdict.

"All competent evidence in the record which is favorable to the respondents we must regard as true and must give them the benefit of every favorable inference which may reasonably be drawn from such evidence. Where the minds of reasonable men may differ, the question should be submitted to the jury. If, when so considered, we find there is substantial evidence to sustain the verdict, the judgment must be affirmed. Hart v. Hogan,173 Wn. 598, 24 P.2d 99; Boyd v. Cole, 189 Wn. 81,63 P.2d 931; Vercruysse v. Cascade Laundry Co., 193 Wn. 184,74 P.2d 920; Perren v. Press, 196 Wn. 14, 81 P.2d 867."Gibson v. Spokane United Railways, ante p. 58, 84 P.2d 349.

There was evidence on behalf of respondent to the effect that appellant's truck was parked four to five feet from the curb with headlights burning and no flares or other signals displayed to warn travelers on the highway that appellant's truck was stalled or parked. There is testimony that the truck obstructed the view of the driver approaching from the east so that he could not see the traffic proceeding from the west. While so parked, the driver of the truck testified, the truck could easily have been operated down the incline and off the bridge to a point where the truck would have been entirely off the highway. Reynolds approached the bridge from the east. Lund approached the bridge from the west.

In arriving at a point close to the place where the truck and trailer were parked (whether the truck was stalled by reason of a frozen feed pipe, was a question of fact), Lund turned to the left of the truck to pass it; and while so doing, his attention was, in part, on the truck, because of his apprehension that some person might come out from under the truck or on the side of the truck, and, as he glanced from the truck and looked ahead, he saw the car operated by Reynolds almost on him. The collision between the two cars resulted. The evidence whether the collision occurred opposite the truck or in front of the truck is in sharp conflict. There was testimony from which the jury could reasonably have inferred that the driver of the truck was by the side of his vehicle, and that, to avoid striking him, Reynolds veered toward the side of the highway away from the truck.

We have consistently held that it was a question of fact for the determination of the jury whether the parking of a vehicle under such circumstances was warranted. The jury's verdict establishes the fact there was no excuse for parking on the bridge. That is, whether appellant exercised the required degree of care in parking his truck on the bridge, was a question for the determination of the jury. I am in accord with the rule enunciated in Kukacka v. Rock, 154 Ore. 542, 61 P.2d 297, mistakenly cited to sustain the majority opinion. The majority holding that the only reasonable deduction that can be made from the evidence is that the injuries sustained are not the natural and probable consequences of the negligence charged, is an invasion of the province of the jury.

The judgment should be affirmed.

HOLCOMB, J., concurs with MILLARD, J.