Fogarty v. Northern Pacific Railway Co.

Citations

• 85 Wash. 90
• 147 P. 652
• 1915 Wash. LEXIS 827

Syllabus

<p>Appeal — Decision — Law of the Case. Where an action for wrongful death was reversed on appeal merely on the ground of failure to segregate the damages accruing to various beneficiaries and an inadequate instruction on the measure of damages, on a second appeal on substantially the same evidence, issues as to the primary negligence of defendant and the contributory negligence of deceased upheld on the first appeal are foreclosed.</p> <p>Appeal — Exceptions—Necessity—Instructions. In the absence of exceptions to the giving or refusal of instructions, it must he assumed on appeal that those given correctly stated the applicable law, and all of it.</p> <p>Death — Statutes—New Cause of Action — Amount of Recovery. The Federal employers’ liability act must be construed, like the statute giving a right of action for wrongful death, as granting a new and independent cause of action for the benefit of the dependent relatives named in the statute, and the damages recoverable are limited to the financial loss sustained by their being deprived of a reasonable expectation of pecuniary benefit by the wrongful death.</p> <p>Death — Abandonment of Wife and Child — Effect. The abandonment of a wife and child by the husband and father, with the intention of not supporting them, his ability to do so being shown, would not deprive them of a right to recover for his wrongful death, under the provisions of the Federal employers’ liability act, since there was a legal duty on deceased’s part to furnish assistance and support to his wife and child, and the fact of abandonment would he material only in mitigation of damages.</p> <p>Appeal — Review—Verdict—Conclusiveness. Where the evidence was conflicting, the supreme court on appeal will not set aside the verdict of the jury, especially after the refusal of the court who heard the evidence to grant a new trial thereon.</p>