Doyle v. Great Northern Railway Co.

Citations

• 43 Wash. 558
• 86 P. 861
• 1906 Wash. LEXIS 747

Syllabus

<p>Appeal — Orders Appealable — Grant op New Trial. An order granting a new trial is appealable under Bal. Code, § 6500, subd. 6, whether based on questions of law or fact.</p> <p>New Trial — Questions Presented., Where a new trial is granted for error of the court in granting a nonsuit for insufficiency of the evidence, the same presents only a question of fact.</p> <p>Master and Servant — Injury to Servant— Assumption op Risks —Railroads—Gas in Tunnel. A locomotive fireman on a passenger train who was overcome with gas in a tunnel nearly three miles in length, does not assume the risk of a defect in the coupler of a helper engine, which became parted in the tunnel three times, nor the risk of inferior coal used on the helper engine, where it appears that the engine had become uncoupled several times on curves while approaching the tunnel, hut it was not the duty of the fireman to Inspect the coupling and he was not allowed to do so, but was informed by tbe engineer that it would not become uncoupled on a straight track, the tunnel being straight, and where it appears that superior coal was usually used and the fireman did not know that inferior coal would be used until he saw it put on shortly before reaching the tunnel, and no danger would have resulted from the use of such coal if the train had not become uncoupled in the tunnel; since he was given no reasonable opportunity to obviate the defects, and the danger in continuance in the performance of his duties was not so imminent as to show want of ordinary prudence in so doing.</p> <p>Same — Defective Appliances — Notice to the Master. In such a case, knowledge of the conductors and engineers as.to the defect in the coupling, with opportunity to report the same, must be imputed to the defendant, in the absence of a showing that they did not report the defect.</p> <p>Same — Contributory Negligence. Under the above facts, it cannot be said as a matter of law that the conduct of the plaintiff and his co-employees s