title:
Columbia & Puget Sound Railroad Company, Plaintiff in error vs Willard C Hawthorne, Defendant in error, Appeal from the District Court holding terms at Seattle, Brief of defendant in error.
creator:
Willard C. Hawthorne
contributor:
Struve
contributor:
Haines
contributor:
McMicken
date:
1888-01-01
publisher:
Supreme Court of the Territory of Washington
type:
Civil
subject:
Torts
language:
eng
format:
application/pdf
description:
Prior History: ERROR to the District Court holding terms at Seattle. Third District.The plaintiff below, being employed by the railroad company in its sawmill, sued the company for personal injuries sustained by him in the course of his employment while engaged in operating a machine known as a trimmer, which, with the machinery and apparatus connected therewith, was alleged to be unsafe, defective, and insecure, of which the plaintiff had no knowledge, nor ready means of knowledge, but which was well known to the railroad company; that while so operating the trimmer one of the pulleys, over which ran the belt which transmitted the power to the saw, which formed a part of the trimmer, without any fault or lack of care on plaintiff's part, but solely on account of the unsafe and insecure condition of the trimmer, and the machinery and apparatus for the operation of the same, all of which was furnished by the defendant, slipped from the shaft on which said pulley was revolving, and fell a distance of eight feet on plaintiff's head and side, thus inflicting the injuries complained of. In addition to denials, the railroad company pleaded affirmatively in its answer that the pulley and every other part of the trimmer was under the exclusive management of the plaintiff, and while operating the same he could see every part of the same, and that plaintiff at all times had full knowledge of the peculiar construction of the trimmer; that while employed in said business it was his duty to keep the same in repair and oiled, and that at the time of the injury he carelessly failed to oil the trimmer, and keep it in running condition, and that his injuries were caused by his own carelessness and negligence. Plaintiff replied by denials. There was a trial by jury, a verdict for $ 10,000, and judgment thereon, from which the railroad company appealed.Master and Servant - Defective Appliances - Knowledge of Master - Negligence - Plaintiff, an employe of defendant, was injured by the falling of a pulley, caused by a wheel working from its shaft impinging upon and unscrewing the nut holding it on the shaft. The nut should have been so fastened that the friction would tighten it. The defect was known to the defendant, but not to the plaintiff: Held, that the injury was caused by a defect in the machinery, for which the defendant was liable.Negligence - Evidence - Admissions - In an action to recover for such injury, evidence that after the accident defendant put planks under the pulley, to arrest its fall in the future, is competent as an admission against the party's interest.Dmages - Negligence - Loss of Ability to Work - Nature of Work - Under an allegation in such case that plaintiff cannot follow his business by reason of the injury complained of, evidence as to what particular kind of business he is deprived of is admissible; no motion to make the complint more definite or for a bill of particulars having been made.Instructions - Servant's Knowledge of Danger - In such a case the defendant asked the following instruction, viz: "If you find the machinery was defective, and also find that the defendant knew it, yet if you find that the plaintiff continued to run, operate, and manage the same with knowledge that it was dangerous and unsafe, then your verdict should be for the defendant:" Held, that the same was properly refused.
description:
Same - When Appliances are Defective - In such an action, an instruction that such machines had been considered safe when babbitted and oiled is properly refused, as failure to keep the machine in question oiled could not have contributed to the injury.Same - Proximate Cause of Injury - In such action, an instruction that if plaintiff was disabled by heart disease, even though caused by the accident, he could not recover, is properly refused.Defective Machinery - Continuous Use - Presumption - In such an action an instruction that if the machinery had been in use several years, without causing any accident, it should be deemed safe, is properly refused, when it appeared that it had been dangerous during the whole time of its use.Practice - Trial - Argument of Counsel - How Objected to - An exception to improper remarks of counsel in argument to the jury will not be considered when no instruction as to how the jury shall consider such remarks is requested.Instructions - Modification of - In such an action, when defendant objected that certain numbered instructions were not modified, and it appearing that such modification was made in instructions of a different number: Held, to be no error, for the reason that it was enough to give an instruction once, and that reiteration would have been a fault, which the court properly avoided.Special Verdict - Discretion of Trial Court - A direction to the jury to make special findings is within the discretion of the court, and in teeh exercise of this discretion, a refusal by the court to so direct is not error.Witness - Examination - Husband and Wife - Consent to Testify - A husband, being party to a suit and calling his wife as a witness and interrogating her, thereby consents that she may testify under section 392 of the Code of this territory.Damages - When not Excessive - Permanent Loss of Health - When one is entirely deprived of health and ability to labor for life by a permanent injury, a verdict of $10,000 is not excessive.
relation:
Columbia & P. S. R. Co. v. Hawthorne, 3 Wash. Terr. 353 (1888)
relation:
19 P. 25
relation:
Columbia & Puget Sound R. Co. v. Hawthorne, 144 U.S. 202 (1892)
rights:
These materials are public records. Please see Washington State Court Rules: General Rules 31 for details https://www.courts.wa.gov/court_rules/pdf/GR/GA_GR_31_00_00.pdf
