Madden v. Occidental & Oriental Steamship Co.

Citations

• 86 Cal. 445
• 25 P. 5
• 1890 Cal. LEXIS 1051

Syllabus

<p>Pleading — Amended Complaint — Waiver of Demurrer.—Where the plaintiff files an amended complaint, any error of the court committed in ruling upon a demurrer to the original complaint is waived.</p> <p>Negligence—Breaking of Rope — Evidence—Nonsuit—Action for Death. — In an action for damages for the death of plaintiff’s husband, claimed to have resulted from the negligence of the defendant, where it appears that the decedent was employed by defendant in loading defendant’s ship, and while so employed the rope-sling, by which freight was being carried into the ship, broke, precipitating freight down the hatchway, thereby fatally injuring the deceased, negligence on the part of the defendant will not be inferred from the mere breaking of the rope, in the absence of evidence tending to show that it was being properly used by the co-employees of the deceased, and in the usual manner, at the time of the accident, or what amount of freight it was intended to or should carry; and a nonsuit is properly granted, where the breaking of the rope and the injury resulting in the death were the only facts proved.</p> <p>Id. — Insufficiency of Machinery — Accident — Prima Facie Evidence — Manner of Use. — The rule that the occurrence of an accident is prima facie evidence of insufficiency of the machinery or appliance being used, if conceded to be the correct rule, only applies where the machinery or appliance is shown to have been used in the usual and proper way, at least where the same is being used by the party injured, or his co-employees.</p> <p>New Trial — Newly Discovered Evidence — Nonsuit. — Where judgment was rendered for defendant upon a nonsuit of the plaintiff, and the evidence set out in affidavits in support of a motion for a new trial upon the ground of newly discovered evidence does not supply the facts necessary to make out or tend to strengthen the plaintiff’s case where it lacked support, a motion for a new trial upon such ground is properly denied.</p>