Curtin v. Clear Lake Lumber Co.

Citations

• 47 Wash. 260
• 91 P. 956
• 1907 Wash. LEXIS 751

Syllabus

<p>Appeal—Review—Waiver of Error—Trial. Error in overruling a motion for a nonsuit is waived by proceeding with, the trial and introducing evidence.</p> <p>Master and Servant—Injuries—Safe Place—Washing—Negligence of Foreman. A master is liable for injuries received by a woodsman by being struck by a falling limb, where it appears that he was set to work by the foreman to saw down a tree, and while so engaged, the foreman, without giving the customary warning of a falling tree, fell another tree in the vicinity which broke off the limb falling on the plaintiff before he could seek a place of safety.</p> <p>Same—Warning—Evidence—Question for Jury. Upon an issue as to whether a warning of danger was given to a servant, the question is for the jury where the evidence of two witnesses for the defendant that plaintiff had admitted a warning is flatly denied by the plaintiff, and there is a sharp conflict in the testimony.</p> <p>Appeal—Review—Harmless Error—Instructions. It is harm- . less error to instruct that inferences should not be drawn because of the absence of material witnesses unless their whereabouts were known to the parties and their presence could have been obtained, where it was made applicable to both parties and there was nothing to indicate that the witnesses were under the control of one party more than the other, or that one was more neglectful than the other, and no prejudice appears (Rudkin and Grow, JJ\\, dissenting).</p>