Alkire v. Myers Lumber Co.

Citations

• 57 Wash. 300
• 106 P. 915
• 1910 Wash. LEXIS 745

Syllabus

<p>Master and Servant — Defective Appliance — Promise to Repair —Pleading and Proof — Variance. It is not a failure of proof to allege the promise of the master to furnish a new snap line on a donkey engine and that the line complained of broke and injured the plaintiff, and to prove that the line which broke was not in use at the time of the promise, but was a defective line substituted by the master.</p> <p>Trial — Waiver of Nonsuit — Amendment to Conform to Proof. Where a motion for nonsuit was waived by the defendant by putting in its evidence, the case will be considered on all the evidence, received without objection, and the pleadings will be deemed amended to conform to the issue presented in its entirety.</p> <p>Master and Servant — Defective Appliance — Promise to Repair —Performance of Promise — -Evidence—Sufficiency. As a promise to repair need not be in express words, the evidence is sufficient to show a promise to repair a defective snap line, where it appears that complaint was made of the “rigging,” which included the snap line, and the employer’s manager replied that he had ordered or would order a “new line,” and undertook to replace not only “the line” but the snap line also.</p> <p>Same — Promise to Repair — Reason for Complaint. A complaint made by the engineer of a donkey engine as to a defective rigging, and that it was breaking every day and that some one would be killed by it, sufficiently shows that self-protection was the motive, as his position was in the zone of danger.</p> <p>Same — Assumption oe Risks — Promise—Imminent Dangers. An engineer of a donkey engine who complained of a defective cable, and was promised a new one, does not assume tbe risks on continuing the work, on tbe theory that tbe danger is imminent, apparent, and pending; since tbe promise is an agreement that tbe master should temporarily assume tbe risk.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict of $9,000 for personal injuries is not excessive,