Gregg v. Northern Pacific Railway Co.

Citations

• 49 Wash. 183
• 94 P. 911
• 1908 Wash. LEXIS 548

Syllabus

<p>Appeal and Error — Review—Grant of New Trial — Grounds of Order — Record. The record discloses that a new trial was granted on points of law which may be reviewed on appeal, and excludes other grounds involving the discretion of the trial judge, where it appears that two grounds of negligence were alleged as the cause of the death of a person struck by an engine; that the court, in a letter to the attorneys deciding the motion for a new trial, stated that he erred in submitting to the jury one of the grounds of negligence, and in denying defendant’s requested instruction withdrawing that issue, upon which issue he concluded that there was no evidence to submit to the jury, stating that this “was the principal ground relied upon for a new trial and it will be granted upon this ground,” and that he did not at that moment recall or pass upon the other grounds, if any; that this letter was included in the statement of facts and made part of the record; and that the judge later refused to sign an order reciting as the sole ground of error the refusal of the defendant’s instruction requesting withdrawal of that issue from the jury, but entered a general order overruling the motion for a new trial without reciting any ground therefor; the motion for a new trial embracing the grounds of excessive damages and insufficiency of the evidence to sustain the verdict (Rudkin and Fullerton, JJ., dissenting).</p> <p>Railroads — Negligence—Death of Pedestrian on Track — Contributory Negligence — Instructions. In an action for the death of a person struck by an engine, based upon negligence of the railroad company before the deceased was struck, and also in starting up the engine again while deceased was still alive and in a position of peril, it was error to refuse to charge that the deceased’s contributory negligence in going on the track without stopping to look or listen would bar a recovery, unless the company failed to exercise reasonable care after learning that the deceased