Dyke v. Johnson

Citations

• 82 Wash. 377

Syllabus

<p>Appeal — Review—Harmless Error — Instructions. Failure to instruct that an affirmative defense was denied by a reply, is harmless, where the jury were told that the burden of proof rested upon the defendants to establish the affirmative defense, and appellant made no request for a further statement of the issues and did not call attention to the matter when the instructions were given.</p> <p>Trial — Instructions—On Unsupported Issues. In an action for damages through a collision of automobiles, it is not error to submit the defendant’s liability upon the sole question of alleged excessive speed, where there was no evidence to sustain allegations of negligence in other respects.</p> <p>Municipal Corporations — Streets — Negligent Use — Collision. Negligence of the defendant in failing to sound a horn in approaching a street crossing is not the proximate cause of an automobile collision, where the plaintiffs saw and were already aware of the approaching car of the defendants.</p> <p>Appeal — Review—Harmless Error — Instructions. It is harmless error, in prefacing an instruction as to a rule of law, to state that defendant lifted a little girl “in his arms” instead of “by the arms,” where the jury could not have been misled.</p> <p>Appeal — Preservation of Grounds- — -Instructions — Requests. Error cannot be predicated upon the failure to give an instruction that a person is not required to use the same degree of care in emergency as when he had time to deliberate, in the absence of any request therefor.</p> <p>Same. Error cannot be predicated upon the incompleteness of an instruction as to the credibility of witnesses in the absence of a request for a more complete one.</p> <p>Appeal — Review—Harmless Error — Evidence. Where the verdict of a jury denied the right of recovery, error in excluding evidence going only to the extent of plaintiff’s injuries, is harmless.</p> <p>Appeal — Record—Statement of Facts — Affidavits. Affidavits used on a motion for a new trial