39 Wash. 62 | Wash. | 1905
Action for personal injuries. Plaintiff obtained a judgment for $450 in the court below. Defendant
The complaint alleged, and the court found, that the appellant was negligent in permitting the chute to become and remain in a defective condition, after its foreman had had notice thereof; that one end of the horizontal bar supporting the main chute and tongue chute, at the junction thereof, was lower than the other end; and it is claimed that, by reason of this defect, the bag which injured respondent was thrown from the chute. It is also claimed that
When the cause came on for trial, and after counsel for respondent had made the opening statement to' the court, the appellant objected to any evidence, for the reason that the complaint failed to state a cause of action, and that the opening statement “shows that there is nothing here for the court to try.” These objections were denied. This court has held that a demurrer of this kind will be treated as an attack upon the complaint after verdict, and that every reasonable intendment and legitimate inference susceptible of being drawn from the facts stated will be applied in aid of the complaint. Prescott v. Puget Sound Bridge etc. Co., 31 Wash. 177, 71 Pac. 772. Tested by this rule, the complaint was sufficient. It is unnecessary to set it out here. In the case of Redding v. Puget Sound Iron & Steel Works, 36 Wash. 642, 79 Pac. 308, in speaking to the question of the statement of counsel, we said:
“Counsel may state their case as briefly or as generally as they see fit, and it is only when such statement shows affirmatively that there is no cause of action, or that there is a full and complete defense thereto, or when it is expressly admitted that the facts stated are the only facts which the party expects or intends to prove, that the court is warranted in acting upon it.”
The statement made by counsel in this case was not such as to bring it within the rule above quoted so as to warrant the court in dismissing the action. The objections were properly denied.
Upon the merits of the case, appellant argues, that respondent assumed the risk; that the evidence shows no negligence on the part of the appellant; that, if the appliances were in a defective condition, the fact was due solely to the negligence of a fellow servant; and that the injury was caused by a pure accident. All these are questions of fact
The judgment is therefore affirmed.