Roberts v. Port Blakely Mill Co.

Citations

• 30 Wash. 25
• 70 P. 111
• 1902 Wash. LEXIS 644

Syllabus

<p>NEGLIGENCE-DEFECTIVE RAILWAY CARS-ACTION FOR INJURIESNONSUIT.</p> <p>In an action for the death of a conductor of a logging train, caused by the derailing of the train, refusal of a nonsuit was proper, where the evidence 'showed that thie train was loaded as usual, was traveling at the usual rate of speed, and that the track was not out of order; that the flanges on some of the car wheels were too thin to be safe, had flaws in them, and that they broke at the time of the accident; that such condition of the flanges make a car unsafe and dangerous, especially when striking a curve; that a reasonable and ordinary inspection would have discovered the defect, and that the derailing of the cars occurred while the train was rounding a curve.</p> <p>SAME-EVIDENCE-ADMISSIBILITY OE BROKEN CAR WHEELS.</p> <p>Where it was claimed that the derailing of a train was caused by the breaking of wheel flanges on some of the cars it was not error to permit the introduction in evidence of a broken flange picked up by a witness several months afterwards at the place of the accident, when he' had testified to being on the train at the time of the accident and to having gathered up a number of broken pieces of flanges and placed them in a heap, and that the piece offered in evidence was picked up in that vicinity and resembled some of them, though he could not identify it.</p> <p>SAME-EES GESTAE-DECLARATIONS OE VICE PRINCIPAL.</p> <p>The declarations of a general superintendent of a railway made on the scene of a train wreck within three hours after it occurred, and tending to explain or account for the same, are admissible in- evidence as part of the res gestae.</p> <p>INSTRUCTIONS-CONSTRUCTION AS A WHOLE.</p> <p>Although an isolated portion of an instruction standing alone may be technically erroneous, yet it will be upheld, if the whole instruction, taken together, fairly states the law.</p> <p>SAME-REEUSAL 'OE REQUESTED INSTRUCTIONS.</p> <p>The refusal of the court to give a genera