Riggs v. Northern Pacific Railway Co.

Citations

• 60 Wash. 292
• 111 P. 162
• 1910 Wash. LEXIS 1042

Syllabus

<p>Death — Right of Action — Statutes—Construction. Under Bal. Gode, § 4828, providing that - the heirs or personal representatives may maintain an action for the death of persons caused by the wrongful act or neglect of another, separate actions cannot be maintained by a widow and a child of the deceased.</p> <p>Appeal — Preservation of Grounds — Waiver of Error. Where separate actions for wrongful death are commenced by the widow in her own interest and as a guardian ad litem for a child of the deceased, when the law gives but one action, and a motion is made to require the widow to elect between the actions, error cannot be predicated on failure of the court to order a consolidation of the actions, instead of requiring an election, where such an order was not refused and the widow evidently did not desire a consolidation.</p> <p>Evidence — Res Gestae. Where a brakeman, who fell from the side of a car, stated when found that he fell by reason of a loose hand-hold, and the parties present walked down the track and examined the cars, their statements upon their return as to the handhold are not admissible as part of the res gestae.</p> <p>Master and Servant — Negligence—Cause of Accident — Evidence —Sufficiency. Statements of the deceased, a brakeman, to the effect that while in the performance of his duties he fell from the side of a car by reason of the giving way of a hand-hold, which were part of the res gestae, made immediately after the accident and in the expectation of death, are sufficient to make a question for the jury as to the negligence of the company, notwithstanding evidence on behalf of the company that, upon examination of the cars next day, no defective hand-hold was discovered.</p>