Gardner v. Porter

Citations

• 45 Wash. 158
• 88 P. 121
• 1906 Wash. LEXIS 942

Syllabus

<p>Appeal — Review — Waiver of Nonsuit —t- Challenge to Sufficiency of Evidence. Proceeding with the trial, after the overruling of a motion for nonsuit, does not preclude the defendants from insisting upon a motion for- a directed verdict at the end of the case, upon which the sufficiency of the whole of the evidence comes up for review.</p> <p>Master and Servant — Contributory Negligence — Evidence — Sufficiency. In an action for personal injuries sustained by an employee, whose duty it was to remove temporary intersecting tramway rails from a railroad track upon the approach of a train, a non-suit should be granted where it appears that he was struck while standing near the crossing while a train passed, but was unable to say by what he was struck, it -appearing probable that the train struck a slide rail which plaintiff had negligently failed to withdraw a sufficient distance from the crossing; since the alleged proximate cause of the injury cannot be left to speculation or conjecture.</p>