Britz v. Houlehan

Citations

• 77 Wash. 506
• 137 P. 1035
• 1914 Wash. LEXIS 933

Syllabus

<p>Explosives — Injuries to Third Persons — Negligence—Complaint —Sufficiency. A complaint alleging the setting off of a blast, without notice, near plaintiff’s residence in a populous city, causing a terrific explosion throwing dust into plaintiff’s eyes, states a cause of action for negligence, although the acts are not characterized as negligent.</p> <p>Pleading — Issues and Proof — Variance. In an action for negligently setting off a blast in a brick yard and throwing brick dust into plaintiff’s eyes, it is not a fatal variance that it was some other foreign substance, thrown by the blast, that injured plaintiff’s eyes.</p> <p>Appeal — Review—Verdict. Where the evidence is conflicting and sustains the verdict, and the trial court refused to set it aside, it cannot be disturbed on appeal.</p> <p>Damages — Personal Injuries — Defenses—Aggravation of Diseased Condition — Instructions. In an action for personal injuries, in which there was an affirmative defense to the effect that plaintiff’s present condition was due to a previous diseased condition, it is not error to instruct to the effect that a previous diseased condition would only go to the amount of the recovery and that defendant would be liable only for aggravation thereof, if any, and if the jury find for the plaintiff, the defense pleaded would not he a separate affirmative defense but could only be considered in determining the amount of the recovery.</p> <p>Explosives — Blasting—Injuries to Third Persons — Negligence —Evidence—Prima Facie Case. In an action for setting off a blast in a populous city, near plaintiff’s residence, evidence that the blast was set off without notice and injured the plaintiff establishes a prima facie case, casting upon the defendant the burden of showing the exercise of due care.</p>