Rowe v. Northport Smelting & Refining Co.

Citations

• 35 Wash. 101
• 76 P. 529
• 1904 Wash. LEXIS 419

Syllabus

<p>Appeal — Review — Motion fob New Tetal — Necessity of. Errors relating to rulings of the trial court during the progress of the trial can be reviewed upon appeal without a motion for a new trial.</p> <p>Nuisance — Damages — Fumes From Smelter — Evidence of Conditions at Another Place. In an action for damages to an orchard and vegetation caused by fumes from a smelter, evidence of the damage done in another place under different conditions, while subject to criticism, is not prejudicial error, when the witness states that the damage was similar to that done to the plaintiffs’ property.</p> <p>Same. In such a case, where there was evidence that the smelter released sulphur on plaintiffs’ -farm two miles distant, it is competent to prove the release of sulphur in the immediate vicinity of the smelter, in corroboration.</p> <p>Same — Expert Evidence of Effect of Sulphur Fumes — Experiments Before Jury — Competency. It is error, in examining expert witness as to the effect of sulphuric acid, to permit experiments to be made before the jury with some substance when there is no proof as to what the substance is, and none that the elements which combined to produce the experimental results were the same as combined to produce the injury to plaintiffs’ farm, or that there was any similarity of conditions.</p> <p>Same — Damages Since Commencement of Action — Instructions Without Evidence on Point. In an action for damages to plaintiffs’ premises by fumes from a smelter, commenced by the service of a summons in August, in which the complaint was not filed until December, and in which there was no evidence as to the damage sustained from August to December, it is error to instruct the jury to assess damages sustained during the two years next preceding December as the date of the commencement of the action, since the action was commenced when the summons was served.</p> <p>Same — Instructions—Waiver of Error — Sufficiency of Exception. The objection to such an instruction i