McDonough v. Great Northern Railway Co.

Citations

• 15 Wash. 244
• 46 P. 334
• 1896 Wash. LEXIS 170

Syllabus

<p>PLEADING — AMENDMENT DURING TRIAL — EXCESSIVE DAMAGES — REMISSION OF EXCESS — DUTY OF MASTER TO SERVANT — FELLOW SERVANTS — EXCEPTIONS TO INSTRUCTIONS.</p> <p>It is within the discretion of the court to permit the amendment of a complaint by plaintiff after the close of his testimony, and it is not an abuse of such discretion when the amendment is not of such a character as to materially change the cause of action, nor such as to occasion surprise or place opposing counsel at a disadvantage.</p> <p>Where the trial court finds that a portion of the damages assessed by the jury is excessive, it is not required to grant a new trial, but may properly direct a remission of the excessive portion of the verdict.</p> <p>A foreman in charge of railway construction work, with authority to employ and discharge workmen and direct them in the performance of their work, and who is the sole representative of the company at the place or within miles thereof, stands in the position of a vice principal, although it may be the duty of such foreman to receive orders from, and report to, the roadmaster, whose headquarters were at a considerable distance from the place of work.</p> <p>The master owes a positive duty to an employee, not only to provide him with a reasonably safe place in which to work, so far as the nature of the work undertaken and the exigencies of the case will permit the same to be made reasonably safe, but also to observe such care as will not expose the employee to perils and dangers which may be guarded against by reasonable care and diligence; and where the performance of this positive duty is by the master entrusted to another, his failure to perform is the failure of the master.</p> <p>Under Laws 1893, p. 112, §4, providing that “Exceptions to a charge to a jury . . . may be taken by any party by stating to the court . . . that such party excepts to the same, specifying . . . the parts of the charge excepted to,” a general exception to a charge of the court s