Box v. Kelso

Citations

• 5 Wash. 360
• 31 P. 973
• 1892 Wash. LEXIS 70

Syllabus

<p>ACTION FOR DAMAGES —EVIDENCE — TRANSFER OF PLAINTIFFS’ INTEREST—CONTRIBUTORY NEGLIGENCE—AMBIGUOUS INSTRUCTIONS.</p> <p>Where plaintiffs in an action to recover damages for the loss of certain standing trees and the timber in certain shingle bolts had, subsequent to the commencement of such action, made a general deed of assignment for the benefit of their creditors, the defendants cannot place such deed in evidence for the purpose of defeating the action, as under Code Proc., §147, providing that “no action shall abate ... by the transfer of any interest therein, if the cause of action survive or continue,” and that the action may “be continued by or against his representatives or successors,” the plaintiffs are entitled to prosecute the action to final judgment in their own names, and when the assignee becomes entitled to the interest of the plaintiffs he alone is the proper party to move in the matter of substitution.</p> <p>In an action to recover for the loss of shingle bolts which were destroyed by reason of fire negligently communicated to plaintiffs’ premises by the acts of the defendants, the fact that the bolts had been left lying on the ground among limbs, brush and other rubbish, and, because of the dryness of the season, were extremely likely to be consumed in case of the breaking out of a fire, does not constitute contributory negligence, and it is not error for the court to omit to charge the jury on that subject.</p> <p>The giving of incomplete and ambiguous instructions by the court is not ground of error, unless the court has been requested to malte his instructions more full and complete, and has refused.</p>