Spencer v. Town of Arlington

Citations

• 49 Wash. 121
• 94 P. 904
• 1908 Wash. LEXIS 537

Syllabus

<p>Municipal Corporations — Defects in Street — Evidence as to Place — Question foe Jury — Implied Dedication. In an action for personal injuries sustained by reason of defects in a street, the evidence is sufficient to warrant the submission to the jury of an issue as to whether the defect was in a public street, where it appeared that the town officers had exercised authority over the place by placing dirt and oil thereon for highway purposes, knowing that it was and would be used for such purposes, that the public had traveled over the place f.or twelve years, and that the town had constructed a cross-walk over the same; since dedication and acceptance may be implied from usage, the making of repairs, and invitation.</p> <p>Appeal — Assignment of Errors — Sufficiency. Error in refusing a new trial on the ground of misconduct of a party is sufficiently assigned where that was one of the grounds of the motion, the brief assigns error on overruling the motion, and a subdivision of the argument is devoted to the subject of such misconduct.</p> <p>Trial — Misconduct of Judge — Comment on Pacts. It is unlawful comment for the judge to state what any one with common sense must say upon an issue.</p> <p>Trial — -New Trial — Misconduct of Counsel. It is misconduct of the prevailing party requiring a new trial, for his counsel, in argument to the jury, to repeat a prejudicial comment on the evidence made by the judge when the jury was not present, counsel stating that the same was “said here by one who knows more about these things than I do,” since the inference would carry to the jury that the judge had made such unlawful comment.</p> <p>Same — Prejudice—-Instructions—Curing Error. Prejudice will be presumed from repeating to the jury a comment made by the judge as to what any one with common sense would say as to one of the material issues of fact, and the same would not be cured by instructions that the jury are sole judges of the fact and should disregard indications