Brown v. Northern Pacific Railway Co.

Citations

• 44 Wash. 1
• 86 P. 1053
• 1906 Wash. LEXIS 778

Syllabus

<p>Master and Servant — Collision of Trains — Contributory Negligence — Evidence—Sufficiency. In an action for the death of a locomotive engineer, killed in a collision, within terminal grounds, the evidence conclusively establishes the contributory negligence of the deceased, so that there is no room for difference of opinion in the minds of reasonable men, and the case is properly taken from the jury, where it appears that deceased was in the sole charge of his train and the brakes, and familiar with the location, and required to know the rule that all trains must approach and pass through the yards “under full control,” i. e., so as to be able to stop within vision, and that he collided with the engine in the terminal grounds, while day was breaking, and while going at the rate of at least eight miles an hour, the distance of unobstructed view being seven hundred feet, and that his failure to observe the rules directly contributed to his injury; as disobedience of rules contributing to the injury conclusively establishes negligence.</p> <p>Appeal — Review—Harmless Error. Error cannot be assigned upon the allowance of an amendment of an answer interposing the defense of the negligence of a fellow servant, where the case was withdrawn from the jury solely upon the ground of defendant’s contributory negligence, which was pleaded before trial.</p> <p>Appeal — Review—Harmless Error — Remarks of Counsel. It will not be assumed that improper remarks of counsel made in the absence of the jury, upon the argument of a motion for a nonsuit, improperly influenced the trial court, where the record does not show that fact, and where the nonsuit was properly granted upon the evidence.</p> <p>Courts — Power to Correct Former Ruling. It is not heyond the power of a trial court t'o reverse its ruling denying a motion for a nonsuit, where immediately after the oral announcement extensive arguments followed, and no judgment or formal order was made, the motion having at first heen c