Volume 1 — Washington Appellate Reports

<bold>[1] Negligence — Evidence — Circumstantial Evidence —</bold> <bold>Inferences.</bold> The jury may draw justifiable inferences from circumstantial evidence to find negligence or proximate cause, but cannot base its conclusion on mere speculation. <bold>[2] Negligence — Proximate Cause — Evidence — Circumstantial</bold> <bold>Evidence — Sufficiency.</bold> Circumstantial evidence is sufficient to establish a prima facie case of negligence if it affords room for men of reasonable minds to conclude that there is a greater probability that conduct relied upon was the proximate cause of the injury than there is that it was not. [See 30 Am.Jur.2d, Evidence §§ 1120, 1121.] <bold>[3] Negligence — Contributory Negligence — As a Matter of Law.</bold> Rarely is the court justified in withdrawing the issue of contributory negligence from the jury. <bold>[4] Negligence — Contributory Negligence — What Constitutes —</bold> <bold>Mere Cause of Injury.</bold> Not every action by a plaintiff can be characterized as negligence, even though it is a cause of the event for which he is bringing suit. <bold>[5] Negligence — Contributory Negligence — Guest on Boat.</bold> A guest passenger on a pleasure boat has a duty to use that degree of ordinary care which a reasonably prudent person would exercise for his own safety under existing circumstances. <bold>[6] Trial — Instructions — Evidence in Support — Necessity.</bold> Each party to an action is entitled to instructions which properly reflect the law applicable to the proven facts; it is error to give instructions which are not supported by substantial evidence. <bold>[7] Negligence — Res Ipsa Loquitur — Plaintiff's Contribution to</bold> <bold>Injury.</bold> In order to invoke the doctrine of res ipsa loquitur it is essential that a plaintiff show, among other things, that the injury-causing accident or occurrence is not due to any voluntary action or contribution on his own part. <bold>[8] Evidence — Res Gestae — Non-witness to Event.</bold> A statement of a person made shortly after an incident giving rise to a negligence action is not admissible as part of the res gestae when he was<page_number>Page 95</page_number> neither a witness nor a non-witness participant, and although nearby was so removed from the event that he had to inquire as to what had transpired. Notwithstanding due consideration of the required elements for admissibility of res gestae, the crucial question is whether the statement was made while the declarant was still under the influence of the event.

<bold>[1] Criminal Law — Trial — Taking Case From Jury — Sufficiency</bold> <bold>of Evidence — Directed Verdict.</bold> In reviewing the denial of a defendant's request for a directed verdict, the appellate court need only consider that evidence most favorable to the state and should draw every reasonable inference therefrom. <bold>[2] Evidence — Hearsay — Effect of Erroneous Admission.</bold> The admission of inadvertent hearsay testimony is not ipso facto reversible error. <bold>[3] Larceny — Embezzlement — Statutory Provisions.</bold> RCW <cross_reference>18.27.020</cross_reference> and <cross_reference>18.27.040</cross_reference>, which provide a civil remedy against the bond of a contractor and a criminal penalty for noncompliance with bonding procedures, do not impliedly repeal RCW 9.54.010(3) and 9.54.080, which provide a criminal penalty for larceny by embezzlement by contractor-agents. <bold>[4] Statutes — Repeal — By Implication — In General.</bold> Repeal of statutes by implication is not favored. There is no implied repeal when the enactments involved have different objects and purposes, or are designed to remedy different evils. [See 50 Am. Jur., Statutes (1st ed. § 534 <italic>et seq.,</italic> § 545).]

<bold>[1] Divorce — Disposition of Property — Discretion of Court.</bold> A trial court's disposition of property in a divorce action will not be disturbed on appeal in the absence of a manifest abuse of discretion. <bold>[2] Courts — Judicial Discretion — Application and Abuse — What</bold> <bold>Constitutes.</bold> Judicial discretion is the power of a court to determine questions, to which no strict rule of law is applicable, according to its personal equitable judgment exercised within certain broad guidelines. A court abuses its discretion only where no reasonable man would take the view it adopted. <bold>[3] Divorce — Disposition of Property — Factors Considered —</bold> <bold>Discretion of Court.</bold> In the disposition of property in a divorce action, the trial court must give consideration to the merits of the parties, the economic condition in which they will be left by the divorce, the sources through which the property was acquired, and the burdens imposed upon it for the benefit of the children, if any. The division need not be mathematically exact, but must be just and equitable, within the wide latitude of discretion with which the trial court is vested in such matters. [See 24 Am.Jur.2d, Divorce and Separation § 933.]