Kincaid v. Walla Walla Valley Traction Co.

Citations

• 57 Wash. 334
• 106 P. 918
• 1910 Wash. LEXIS 753

Syllabus

<p>Street Railways — Streets — Defective Tracks — Franchise— Liability. A street railway company, under its franchise requiring it to plank the street between the rails, as well as under the common law, is liable to a traveler who, in driving across the tracks, sustains injury through the company’s maintaining its rails without planking, in violation of the franchise, and negligently extending six inches above the ties unprotected except by soft yielding dirt, which gave it the appearance of safety: and it is immaterial, that the street was planked at street intersections, as the traveler’s right to cross the tracks is not limited to crossings.</p> <p>New Trial — Newly Discovered Evidence' — Cumulative Evidence. A new trial for newly discovered evidence is properly denied where the evidence either fails to meet the issue or is cumulative.</p> <p>New Trial — Diligence. In an action for injuries sustained by a traveler, who alleged that his wagon wheels came in contact with unguarded street car tracks where the company should have planked the street, lack of diligence will prevent the granting of a new trial for the newly discovered evidence of a witness who would testify that the wagon tracks indicated that the wheels did not come in contact with the rails, where it appears that the company’s manager visited the scene of the accident soon after the accident and before removal of the wagon, and did not investigate to ascertain whether the wheels had come in contact with the rails.</p> <p>New Trial — Second Motions — Order—Finality. After the denial of a motion for a new trial, required to be made within a specified time, the trial court is without jurisdiction to consider another motion for a new trial.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $5,500 for personal injuries sustained by the driver of a water wagon, 64 years of age, earning four dollars per day with his team, is not excessive, where he sustained a compound comminuted fracture