Gallagher v. Town of Buckley

Citations

• 31 Wash. 380
• 72 P. 79
• 1903 Wash. LEXIS 639

Syllabus

<p>CONTRIBUTORY NEGLIGENCE-BURDEN OF PROOF.</p> <p>In actions for negligence contributory negligence is an affirmative defense, placing tb'e burden of proof upon defendant to establish it.</p> <p>MUNICIPAL CORPORATIONS —• DEFECTIVE STREETS DUTY AS TO ENTIRE WIDTH — INJURY TO TRAVELER.</p> <p>Conceding that it is the duty of a municipal corporation to keep only the traveled portion of a highway in repair, yet a charge to the jury that one traveling upon the street of a town, without any notice of a defect therein, has a right to presume that it is reasonably safe for ordinary travel throughout its ■entire width, would be no more than harmless error, where the evidence did not show that plaintiff’s team, in running into a hole in the highway, left entirely that portion of the street which was ordinarily traveled.</p> <p>TRIAL — INSTRUCTIONS — CUBING ERROR.</p> <p>Error of the court in charging the jury as to permanent injuries to plaintiff in an action to recover for personal injuries in which no claim was set up for permanent injuries, was cured by the court’s later instruction to disregard what had been said by him as to permanent injuries and his explanation to the jury that no claim for such injuries was involved in the case.</p> <p>SAME-ARGUMENT TO JURY-READING FROM LAW BOOKS.</p> <p>The fact that plaintiff’s counsel, in a personal injury case, read to the jury an opinion of the supreme court in a similar ease will not be regarded as prejudicial error, when the opinion read was in accord with the law as given by the court to the jury, and when there is nothing to show that the jury may have been misled or the defendant in any way prejudiced thereby.</p>