Myrberg v. Baltimore & Seattle Mining & Reduction Co.

Citations

• 25 Wash. 364
• 65 P. 539
• 1901 Wash. LEXIS 403

Syllabus

<p>NEGLIGENCE — ACTION ISY EMPLOYEE EOB, PEBSONAL INJTJBIES-NONSUIT.</p> <p>Defendant is not entitled to a non-suit in an action against it to recover for personal injuries resulting from its negligence in allowing dynamite to lie for several months near the mouth of its mine tunnel, exposed to heat and rain, thereby rendering its explosive character extra hazardous, when it appears from, the evidence that plaintiff had been working for nearly two months in the mine removing dirt and rocks after blasts; that he knew of the existence and proximity of the exposed dynamite, but there was nothing to show that he knew of its extra hazardous condition because of its exposure to the weather, and there was nothing in his duties requiring him to be an expert in the knowledge or use of dynamite; and there was no evidence conclusively establishing plaintiff’s contributory negligence, or that the explosion was the result of the unauthorized act of a fellow servant.</p> <p>MISCONDUCT OF JUDGE-COMMENT ON FACTS WHEN BULING ON MOTION FOE NON-SUIT.</p> <p>The action of the court in expressing an opinion on the facts when ruling upon a motion for non-suit, is not error, although made in the presence of the jury, when counsel have not requested the withdrawal of the jury during argument and ruling upon the motion.</p> <p>ACTION FOB PEESONAL INJUEIES-PHYSICAL EXAMINATION OF PLAINTIFF,</p> <p>The refusal of the court to allow the physical examination of plaintiff in a personal injury case by an expert is not an abuse of discretion, when such examination is asked for by defendant in the midst of the trial. (Lane v. Spokane Falls & N. Ry. Co., 21 Wash. 119, distinguished).</p>