Mitchell v. Tacoma Railway & Motor Co.

Citations

• 9 Wash. 120
• 37 P. 341
• 1894 Wash. LEXIS 268

Syllabus

<p>STREET RAILWAYS — ACCIDENT AT CROSSING — NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS — IMPROPER ARGUMENT.</p> <p>In an action against a motor company for negligently running over a child of tender years on or near a crossing, defendant is not entitled to a non-suit on the ground of the insufficiency of the evidence when there is evidence showing that the gripman did not keep such a lookout as the circumstances demanded, nor give any warning of approach, and that, after discovering the child on the track, the car might have been stopped sooner, if the brakes had been in proper condition.</p> <p>In an action for damages against a motor company, where one of the issues is that plaintiff was guilty of contributory negligence in suddenly running in front of the car while it was in motion, it is misleading to charge the jury that “ all persons have a right to be on and pass along the street, and one is not a trespasser because he happens to be on the line or track of a street car.”</p> <p>In such an action instructions are erroneous which ignore the question of the contributory negligence of plaintiff, while they emphasize the fact that plaintiff was a child of tender years, and not chargeable with the same care as adults, but that defendant was chargeable with a greater degree of care toward children, and what would not be negligence toward an adult might be in the case of a child of tender years.</p> <p>Where one of the parties to an action asks the court for instructions on the whole case, and the court charges as requested, the errors of incompleteness therein are imputable to the party requesting the instructions, and a failure of his opponent to ask for more specific instructions is not a waiver of the error.</p> <p>In an action to recover for injuries received through the alleged negligence of defendant, it is error to refuse defendant’s request for a charge to the jury that, if it appeared from the evidence that the injury to the plaintiff may have be