Long v. McCabe & Hamilton, Inc.

Citations

• 52 Wash. 422
• 100 P. 1016
• 1909 Wash. LEXIS 1133

Syllabus

<p>Master and Servant — Fellow Servants — Duty of Master — Presumption — Occurrence of Negligent Act — Burden of Proof. While it is the duty of the master to make a reasonable effort to ascertain the competency of a servant, negligence in that respect is not presumed from the occurrence of an accident through such servant’s neglect, blit the burden is on plaintiff to prove (1) the fellow servant’s incompetence; and (2) that the master knew or should have known thereof.</p> <p>Trial — Province of Court and Jury — Nonsuit. While courts may not determine the weight of the evidence, if there is no evidence of a fact essential to sustain liability, they must so declare the fact.</p> <p>Master and Servant — Fellow Servants — Master's Knowledge of Incompetency — Presumption—Evidence—Sufficiency—Opinions. The opinion of a single witness that a fellow servant was timid and therefore incompetent to drive a winch, without proof of a single prior negligent act, is not sufficient to charge the master with notice of his incompetency, or overcome the presumption that the master had performed his duty in employing competent fellow servants.</p> <p>Same — Negligence of Master in Employing Servant — Evidence— Sufficiency — Negligent Acts. The rule that evidence of negligent acts of a fellow servant from which incompetency might be inferred makes a prima facie case that the master was negligent in employing him, is not to be extended to a case where his only negligent act was the act complained of.</p> <p>Trial — Province of Court and Jury — Prima Facie Case — Shifting Burden of Proof — Questions of Law. Where the burden of proof is shifted from the plaintiff to the defendant by a prima facie case sufficient to overcome a presumption in favor of the defendant, and is then shifted back to the plaintiff by defendant’s counter evidence, plaintiff’s prima facie case must, on demurrer to the evidence, be' measured by defendant’s evidence, and determined as a matter of law in the light of d