Wright v. Northern Pacific Railway Co.

Citations

• 38 Wash. 64
• 80 P. 197
• 1905 Wash. LEXIS 1117

Syllabus

<p>Continuance—Trial Amendment to Complaint. Introducing New Cause of Action—Defendant’s Right to Notice and Time to Prepare Defense—Railroads—Negligence—Death of Pedestrian at Crossing—Pleading—Amendment—Discretion. Where a complaint alleged the negligence of a railroad company in running a train through, a town at a dangerous rate of speed without any head light or warning signals, whereby a pedestrian on the track was struck and instantly killed, it is an abuse of discretion to refuse the defendant a continuance and a reasonable time to prepare its defense, where at the trial the plaintiff was allowed to amend the complaint by setting up that the deceased was struck and placed in a position of great peril, and that the train crew, after bringing the train to a stop, negligently permitted the same to move forward and kill the deceased, although counsel in moving for the continuance was not able to make the affidavit to the effect that he would be able to prove, by other witnesses than those on hand, that the defendant was not guilty of the negligence charged in the amendment; since the defendant was misled as to the character of its defense and deprived of its statutory right of notice.</p>