Kluska v. Yeomans

Citations

• 54 Wash. 465
• 103 P. 819
• 1909 Wash. LEXIS 1018

Syllabus

<p>Master and Servant — Negligence—Accident to Trains — Presumptions — Pleading—Specific Grounds. The right to the presumption of negligence arising from proof of an accident to a train is not abandoned by reason of the fact that specific acts of negligence were alleged and no proof was made of such specific acts.</p> <p>Same — Pleading and Proof — Issues—Amendments. Where defendant’s proof showed the specific cause of the accident to be other than that alleged in the complaint, the plaintiff is entitled to the benefit of all the proofs, on challenge to the sufficiency of the evidence, as the complaint will be deemed amended to conform to the proof.</p> <p>Same — Negligence of Master — Railroads—-Roadbed. Where the brass in the axle of a logging car is liable to be misplaced, allowing the frame to drop down, it is negligence for the railroad company to use the road, for the carriage of employees, after the county had so placed planking at a county road crossing that the planks would catch the frame of the car and cause injury to an employee riding on the cars.</p> <p>Same — Negligence of Master — Evidence—Sufficiency. The evidence sustains a recovery for injuries received by an employee riding on a logging train, notwithstanding the appliances were of standard make and in common use, where it appears that it was a common occurrence for the brasses in the axle of the trucks to slip out, without any fault, allowing the frame to drop down, and that the frame thereby caught upon planks put down by the county at a county road crossing, and that the planks had been laid for several days, and long enough to give the defendant notice thereof, or to put defendant on inquiry; there being a conflict in the evidence as to whether the plaintiff had been notified not to ride upon the train.</p> <p>Same — Notice to Master — Time—Question for Jury. In such a case, where new planking had been laid at the crossing several days before the accident, and had been run over for at least t