Allend v. Spokane Falls & Northern Railway Co.

Citations

• 21 Wash. 324
• 58 P. 244
• 1899 Wash. LEXIS 286

Syllabus

<p>MASTER AND SERVANT-INJURY TO SERVANT-MASTER’S LIABILITY-PLEADING.</p> <p>In an action by an employee for injuries received from an explosion of giant powder on a construction train, caused by spark» from the engine, the fact that plaintiff alleges in his complaint that “ if defendant had exercised ordinary care in and about the construction and use of said engine said sparks would not have-been emitted and the explosion would not have occurred,” does, not limit the plaintiff to proof of defective construction and careless management of the engine as the proximate cause of the-explosion, as such allegation is merely the pleader’s conclusion, drawn from preceding facts stated, and hence an immaterial statement, there being other sufficient allegations in the complaint charging negligence in placing the powder on the train, exposed, to flying sparks, and failing to warn plaintiff thereof.</p> <p>SAME-EVIDENCE.</p> <p>In an action for personal injuries resulting from the explosion of giant powder in a caboose, alleged to have been caused by-sparks from the engine, although there is no evidence of a single-spark coming into the caboose on the day of the accident, yet where the evidence shows that the engine was a wood burner- and emitted a large volume of sparks whenever it was operated; that at the time of the explosion sparks were flying past the; caboose, which had both its side doors open, and that there was-no other source from which the fire could have originated, the-evidence is sufficient to raise a question of fact for the jury to pass upon.</p> <p>PLEADINGS — AMENDMENT—WHEN PERMISSIBLE.</p> <p>A party is entitled to amend bis pleading at the close of the evidence, to correspond to the evidence introduced, when it contains no new allegations, tending in any way to surprise or mislead the adverse party, and when its only effect would be to harmonize the allegations of his pleading.</p> <p>REVIEW ON APPEAL — PLEADING AND PROOF-AMENDMENTS.</p> <p>Under Bal. Code