McEwen v. Tucci & Sons, Inc.

Annotate this Case

71 Wn.2d 539 (1967)

429 P.2d 879

JOHN C. McEWEN, JR., Respondent, v. TUCCI & SONS, INC., Appellant.[*]

No. 38756.

The Supreme Court of Washington, Department One.

June 29, 1967.

Rush & Lynch by William J. Rush, for appellant.

Edward Heavey, for respondent.

PER CURIAM:

This is another factual appeal.

The case was submitted to the jury on the issues of the negligence of the defendant and the contributory negligence of the plaintiff. The jury could have found either way on either issue. By its verdict, the jury found that the defendant was negligent, and that the plaintiff was not contributorily negligent.

[1] We reiterate that we do not retry factual disputes where, as here, there is substantial evidence or reasonable inferences therefrom that support the verdict. See Swartley v. Seattle School Dist. No. 1, 70 Wn.2d 17, 421 P.2d 1009 (1966).

The only feature in this case which warrants further consideration is the statement of the trial court included in the judgment on the jury's verdict:

The court believes that the verdict is contrary to the weight of the evidence in this case as presented, but does deny the motion for judgment notwithstanding the verdict and denies the motion for a new trial for the reason *540 that the court feels that the court does not have the power to grant a new trial based on recent decisions of the Supreme Court of the State of Washington.

We have heretofore expressed our view as to the responsibilities and duties of a trial judge who believes a new trial should be granted. See footnote 2, Sullivan v. Watson, 60 Wn.2d 759, 765-6, 375 P.2d 501 (1962). Our views expressed therein remain unaltered.

[2] In the present case, the trial court believed that the verdict was against the weight of the evidence. We would agree with the trial court that standing alone such a circumstance does not warrant the granting of a new trial. It amounts to no more than a disagreement with the jury's verdict.

Judgment affirmed.

NOTES

[*] Reported in 429 P.2d 879.