Collett v. Northern Pacific Railway Co.

Citations

• 23 Wash. 600
• 63 P. 225
• 1900 Wash. LEXIS 395

Syllabus

<p>NEGLIGENCE-EXCAVATION IN HIGHWAY-PERSONAL INJURIES — PLEADING AND PROOF.</p> <p>In an action to recover damages for injuries received as a result of defendant’s negligence in making an excavation across a public highway, wherein the complaint alleges “there was no railing or other protection to guard persons against the danger of falling into said excavation; that the same was left open and wholly unprotected; and plaintiff, relying upon the fact that said crossing should be in a safe condition for travelers, and the night being so dark that plaintiff was unable to discern the unsafe condition the same was in, was, without fault on his part, precipitated and thrown down into said excavation,” the action of the court in rejecting evidence that defendant maintained no light at the excavation, based on the want of an allegation to that effect in the complaint, is erroneous, since the negligent act, the doing of which occasioned the injury, is alleged in the complaint, and it is unnecessary to plead the evidentiary matter setting out the facts constituting the negligence.</p> <p>SAME.</p> <p>Irrespective of the rule permitting proof of negligent acts under a general allegation of negligence, a complaint which alleges that plaintiff was precipitated into an excavation left open and unprotected through defendant’s negligence, and that the night was so dark plaintiff was unable to discern its unsafe condition, and a denial of such allegations in the answer, raise an issue as to whether or not the defendant maintained lights at the excavation.</p> <p>APPEAL — PRESUMPTIONS IN AID OF JUDGMENT — ERROR.</p> <p>The rule that every intendment will be brought to bear in aid of the judgment is inapplicable in cases where a legal error has been committed by the court in denying or invading the rights of a litigant, and gives way to the rule that error, having been committed, will be presumed prejudicial, unless it affirmatively appears from the record to the contrary.</p> <p>SAME