Wolf v. Hemrich Bros. Brewing Co.

Citations

• 28 Wash. 187
• 68 P. 440
• 1902 Wash. LEXIS 473

Syllabus

<p>PLEADING- — AMENDMENT ON TRIAL-IMMATERIAL VARIANCE.</p> <p>Where a complaint alleged that defendants’ negligence consisted in driving a wagon ahead of a street car and, instead of stopping, to allow the car to pass, attempt was made to drive the team between the car tracks and plaintiff’s horse and wagon standing at the curb, where the space was too narrow and a collision resulted to the injury of plaintiffs, evidence that the car had passed defendants’ wagon some distance down the street, occasionally stopping to let passengers off, and that when the car was opposite plaintiffs’ horse defendant attempted to. pass the car by driving between it and tbe borse and wagon of plaintiffs, constitutes merely an immaterial variance, warranting amendment of the complaint on the trial to correspond with the proofs.</p> <p>NEGLIGENCE — RECKLESS DRIVING — NON-SUIT.</p> <p>The question of the negligence of defendant’s driver was properly submitted to the jury, where there was evidence that he attempted to drive his team between a street car and plaintiffs’ horse and wagon, in a space which was too narrow, for the purpose of passing, and that just before attempting. to drive through such narrow place he whipped up his horses and was going at a lively rate.</p> <p>SAME-EXAMINATION OF WITNESS ■— QUESTION CALLING FOR OPINION -HARMLESS ERROR.</p> <p>In an action to recover damages occasioned by so driving a wagon as to cause a collision with another, it was not prejudicial error for the court to permit a witness to be asked “if the driver seemed to have the team under control, or whether the team was acting in a fractious or excited manner prior to the collision,” since the witness could have given no different answer to the question had the word “had” been used in place of the words “seemed to have.”</p> <p>SAME — INSTRUCTIONS.</p> <p>In an action to recover damages by reason of the negligence of defendant’s driver in attempting to drive his team in a space between a street car an