Smith v. Michigan Lumber Co.

Citations

• 43 Wash. 402
• 86 P. 652
• 1906 Wash. LEXIS 717

Syllabus

<p>Appeal — Review — Pleadings — Amendment — Waiver oe Objections. In order for a defendant to allege error in allowing an amendment to the complaint at the commencement of the trial, on the ground of surprise, it is not enough to object to the amendment upon that ground, but it is necessary to apply for a continuance.</p> <p>Appeal — Record—Matters to Be Shown — Continuance—Denial. A claim of error in refusing to grant a continuance on the ground of surprise by the allowance of an amendment to the complaint cannot be reviewed in the absence of the application from the record.</p> <p>Master and Servant — Contributory Negligence — Questions eob Jury. Whether a sawyer, injured by the breaking of a saw, was guilty of contributory negligence or assumed risk is for the jury, where the testimony was conflicting and not conclusive either way as to whether the injury resulted from the negligence of an incompetent and careless fellow servant.</p> <p>Same — Fellow Servants — Employment of Incompetent Servants. The master is liable for injuries caused by plaintiff’s fellow servant, known by the master to be incompetent and negligent, when the liability rests upon the fact that he was put to work where his conduct was liable to result in the injury, and not upon the mere fact of his negligence.</p> <p>Appeal — Review—Verdicts. The verdict of a jury to the effect that defects or flaws in a saw might have been discovered by inspection will not be disturbed on appeal where the evidence was conflicting.</p> <p>Trial — Instructions—Requests. It is not error to refuse instructions in the language requested if the material part and the substance is given in suitable language.</p>