Herrick v. Washington Water Power Co.

Citations

• 75 Wash. 149
• 134 P. 934
• 1913 Wash. LEXIS 1689

Syllabus

<p>Trial — Instructions—Issues Withdrawn. The question of the negligence of a motorman, in failing to discover an intoxicated person on the street car tracks, was not intended to be withdrawn from the jury by remarks of the trial judge, in ruling upon defendant’s motion to withdraw all allegations of negligence save that of the failure to observe the rule of last clear chance, that his judgment was that the plaintiff can submit the question whether the motorman saw the man in time to avoid the injury, and if so, whether he used due care to stop the car as soon as he could, whereupon defendant consented that those two propositions be submitted, where defendant’s motion was expressly directed to the elimination of allegations of excessive speed, defective brakes, insufficient headlights and insufficient fender, and defendant afterwards introduced evidence to establish that the motorman could not, in the exercise of an ordinary care by a proper lookout, have discovered the plaintiff on the track in time to avoid the injury; and it was not error for the court, to instruct the jury as to care in keeping a lookout.</p> <p>Negligence^ — Hast Clear Chance — Contributory Negligence — Instructions — Issues to be Submitted. In an action for personal injuries, where all charges of negligence on the defendant’s part have been withdrawn, save that of a failure to avail itself of the last clear chance to avoid the injury, the defense of contributory negligence may be withdrawn from the consideration of the jury.</p> <p>Street Railroads — Injuries to Persons on Tracks — Hast Clear Chance — Contributory Negligence — Eeeect. Negligence of a motorman in failing to observe plaintiff in an intoxicated condition on the track in time to avoid an injury is sufficient to invoke the rule of the “last clear chance,” if the negligence of the defendant continued after the negligence of the plaintiff had ceased or culminated in a dangerous position which he could not escape and which reasonable