Lamoon v. Smith Cement Brick Co.

Citations

• 74 Wash. 164
• 132 P. 880
• 1913 Wash. LEXIS 2014

Syllabus

<p>Appeal — Review—Pleadings—Amendments to Conform to Proof —Master and Servant — Variance. A variance between tbe complaint and proof as to tbe particular point where a runway for wheeling concrete in wheelbarrows was too narrow, will on appeal be deemed immaterial, or tbe complaint amended, where tbe evidence was admitted without objection on tbe ground of variance or claim of surprise.</p> <p>Master and Servant — Injury to Servant — Negligence—Proximate Cause — Question for Jury. Whether the narrowness of a runway for wheeling concrete in wheelbarrows, was the proximate cause of injury to a servant who fell from the runway when his wheelbarrow struck a post, is a question for the jury, where the post protruded at a right angle turn, and witnesses testified that the runway was dangerous and too narrow to make the turn around the post with safety.</p> <p>Same — Contributory Negligence — Evidence—Question for Jury. In such a case, whether the plaintiff was guilty of contributory negligence in failing to proceed a foot or eighteen inches further before attempting to make the turn, or negligently lost control of his wheelbarrow before he reached the turn, were questions for the jury, where the evidence was conflicting; especially since slight negligence in failing to gauge his distance to a nicety would not preclude a recovery.</p> <p>Same — Assumption of Risks — Obedience to Orders — Promise to Repair — Question for Jury. A servant proceeding along a narrow runway with a loaded wheelbarrow of concrete, in obedience to a direct order, does not assume the risk, where he protested against the use of the narrow runway and the foreman promised to fix it.</p>