Dumontier v. Stetson & Post Mill Co.

Citations

• 39 Wash. 264
• 81 P. 693
• 1905 Wash. LEXIS 855

Syllabus

<p>New Trial — Newly Discovered Evidence — Absent Witness — Affidavit of—Discretion. Tbe affidavit of tbe witness, or good cause for its nonproduction, being required by Bal. Code, § 5076, it is not an abuse of discretion to refuse a new trial on tbe ground of newly discovered evidence, where tbe witness lived in Spolcane and bis affidavit was not produced, after twenty days continuance of tbe motion, and where tbe appellant knew of bis whereabouts during all said time and merely affirms that tbe witness was (now) temporarily absent from bis place of business and that be bad been unable to procure bis affidavit after making every effort to do so.</p> <p>Same—Absence of Witness—Request for Continuance. It is not an abuse of discretion to refuse a new trial for newly discovered evidence, where tbe existence of a material witness, who could not be found, was at all times known, and bis residence was discovered before tbe close of tbe trial, but not in time to produce him, and tbe appellant did not seek a continuance on account of tbe absence of tbe witness or ask any postponement of the trial for tbe purpose of producing tbe evidence.</p> <p>Master and Servant—Liability to Third Persons—Negligence of Servant—Unloading Lumber—Evidence of Negligence—Question for Jury. In an action for personal injuries sustained through tbe fall down a hill of a load of lumber, being delivered by the defendant’s teamster to the plaintiff, at the edge of a steep bluff, there is sufficient evidence to sustain a verdict for the plaintiff, where it appears that the wagon was so constructed that the entire load could he unloaded at one time, that the teamster had commenced to unload by throwing pieces down the hill, that plaintiff, after giving directions as to the manner of unloading, went down the hill to straighten hoards thrown down, and while there with notice to the teamster, the entire load was unloaded at once, and slipped down the hill, striking the plaintiff and causing the injury,