(dissenting) — The order granting a new trial is sustained upon the ground of newly discovered evidence. The proffered new evidence, as disclosed by the record, does not meet the test for granting a new trial. Nelson v. Placarnica, 33 Wn. (2d) 523, 526, 206 P. (2d) 296 (1949), and cases cited.
The majority state that, if Mr. Haggith is permitted to testify at a new trial, his testimony would establish that he
“ ‘. . . saw the automobile stop, back up hurriedly, and then quickly cut over to the left across the highway toward a driveway. That said backing and turning by said automobile were done in a rapid and hurried manner and not slowly.’ (Italics ours.)”
The majority conclude that “the jury could well absolve respondent of contributory negligence on the well-recognized ground that he had been confronted with a sudden emergency.”
Contributory negligence was an issue in this case. The evidence on sudden emergency which “could well absolve respondent of contributory negligence” was presented at the trial. The respondent testified that he and the appellant were proceeding in their vehicles upon the highway in the same direction. He testified that he was preparing to pass, the appellant’s automobile, concluding from what he observed that it was either standing still or slowly moving' forward on the right side of the road; that, without giving a signal, the appellant turned abruptly in front of him onto the left side of the road, and that, immediately upon seeing, the appellant turn to the left, he applied the brakes but was. *915unable to avoid the collision. The respondent’s motorcycle struck the left rear wheel of the automobile. At the instant of the impact, appellant’s automobile had traveled practically across the left lane. Approximately one foot of the automobile remained on the pavement, the rest being on the shoulder on the left side of the road. Respondent’s “absolving” evidence as to contributory negligence was before the jury in this case. After considering the evidence, the jury, by their verdict, did not absolve him.
The emergency, if it was not of respondent’s own making, arose only when the appellant started to cross the road. Whether or not an emergency was thereby created depends upon the position of the vehicles upon the highway.
The proffered witness, Mr. Haggith, did not see the position of respondent’s motorcycle on the highway in' relation to that of the appellant’s automobile. His only testimony would be that he observed the appellant’s position on the highway and that appellant suddenly turned his automobile to the left. His testimony would establish only the manner of the turning, rather than when the turn was made in relation to respondent’s position on the highway. It would, therefore, contribute nothing toward proving respondent’s lack of negligence.
The proffered evidence at best would be only cumulative or corroborative of respondent’s testimony. Newly discovered evidence which is cumulative or corroborative only is not sufficient to sustain the trial court in the granting of a new trial. Mitchell v. Mitchell, 24 Wn. (2d) 701, 705, 166 P. (2d) 938 (1946); Chadwick v. Ek, 5 Wn. (2d) 554, 556, 106 P. (2d) 104 (1940), and cases cited; Hardman Estate v. Mc-Nair, 61 Wash. 74, 78, 111 Pac. 1059 (1910).
The trial judge’s second reason for granting a new trial was that he was of the opinion that he should have given respondent’s requested instruction No. 18. I agree with the majority that the refusal to instruct the jury in this regard was not error.
In my opinion, the order granting a new trial should be *916reversed, and the cause remanded with instructions to enter judgment based upon the verdict of the jury.
February 24, 1960. Petition for rehearing denied.