79 Wash. 448 | Wash. | 1914
The respondent, plaintiff below, brought this action against the appellant railway company, under the Federal employer’s liability act, to recover for personal injuries suffered by him while in the appellant’s service as a member of its bridge crew. At the trial, the superior court refused to direct a verdict in the appellant’s favor, and the jury returned a verdict for the respondent in the sum of $15,000. Judgment was afterwards entered on the verdict, and this appeal taken therefrom.
At the time of the accident giving rise to the injury, the appellant was engaged in repairing a bridge extending across a stream on one of its branch lines. The repair work necessitated the driving of piles. Timbers suitable for piling were hauled by the appellant and unloaded alongside of the railway track, a short distance back from the margin of the stream. The respondent’s duty was to cut the timbers into
A pile was being picked up in the manner described at the time the respondent was injured. He assisted in fastening the cable to a pile and moved across to the opposite side of the track from the pile when a signal to hoist was given the engineer operating the pile driver engine. After the end of the pile had been hoisted to a height of some 10 or 12 feet it suddenly swung over to the side of the track on which the respondent was standing, where it struck the respondent and caused the injuries for which he sues.
Noticing the errors assigned in the order in which the appellant presents them, it is first contended that there is no allegation in the complaint, .or proof in the record, that the branch line of the appellant’s railway, on which the accident happened, was used by it in its business of carrying interstate commerce. But.while the allegation of.the complaint was not as full in this respect as it could have been made, we think.it sufficient, as against an objection raised for the first time by
The allegations of the complaint in the respect mentioned were admitted in the answer, and since we hold them sufficient, it was of course not necessary that proof thereof be tendered or made.
It is next contended that the evidence failed to show negligence on the part of the appellant. But we think the most
The respondent, among other injuries, sustained a fracture of the femur of the left leg. When still in the hospital, although going about on crutches, he fell while attempting to descend a stairway and refractured the bone at the place of the original fracture. This accident confined him to his bed for an additional eleven weeks, and correspondingly increased his sufferings and delayed his recovery. The appellant introduced evidence tending to show that the respondent was in an intoxicated condition at the time of the second fracture, and that such fracture was the direct and proximate result of his intoxicated condition. In its charge to the jury upon this question, the court instructed them that, if they found that the respondent was in an intoxicated condition at the time he received his second injury, and that such condition was the direct and proximate cause of such second injury, then the appellant would not be liable in damages for the ádditional suffering and delay in recovery caused thereby, but would be liable only for such damages as were the direct and proximate result of the original injury; adding thereto that, if they found that the respondent was intoxicated at the time he fell and fractured his leg the second time, but
Error is assignéd on the last part of the instruction, but manifestly it is a correct statement of the law. If a person receives an injury through the negligent act of another, and the injury is afterwards aggravated, and a recovery retarded through some accident not the result of want of ordinary care on the part of the injured person, he may recover for the entire injury sustained, as the law regards the probability of such aggravation as a sequence and natural result likely to flow from the original injury.
In the course of the argument to the jury, one of the attorneys for the respondent made statements to the effect that there was no evidence before them concerning a particular fact. The attorney for the appellant had the stenographer in attendance upon the court transcribe extracts from the testimony of a certain witness, and when arguing the appellant’s case to the jury, sought to read these extracts as controverting the attorney’s statements. An objection was made to the reading of the extracts unless the whole of the evidence of the witness should be read. The court sustained the objection, whereupon the attorney requested that the stenographer read the parts transcribed from his shorthand notes, which request was also denied by the court. These rulings are assigned as error, but we do not think them so. How many times a witness may be recalled on a particular matter, or how many times his evidence may be repeated to the jury, rests in the sound discretion of the court, to be reviewed only for abuse. Here we find no abuse of discretion. The attorney was not denied the right to refresh his memory from the stenographic notes, or from any memorandum he may have made of the evidence otherwise, nor was he denied the right of stating to the jury his remembrance of the testimony of any witness, nor from drawing any deduction or conclusion he chose to draw therefrom. He
Lastly, it is contended that the verdict is excessive, and with this contention we are constrained to agree. Unques-. tionably the respondent’s injuries were severe, and he has suffered much because thereof. But, nevertheless, we think the verdict ought not to be allowed to stand for the amount returned by the jury. The resultant effect of' the injury is a shortened and otherwise deformed leg, which will probably not permit the respondent to engage in the avocations followed by him prior to his injury. But his physical health is otherwise good, and as we said in passing upon a similar injury, there are avocations open to him which he may still pursue. In finding the amount of the recovery, this is a proper consideration, and seemingly the jury, which gave but thirty minutes to a consideration of the case, did not sufficiently consider it.
The judgment appealed from will therefore be reversed and the cause remanded with instructions to grant a new trial, unless the respondent will, in writing, within thirty days after the remittitur from this court reaches the trial court, consent to a judgment of ten thousand dollars. If he so consents, judgment shall be entered in his favor for that sum. If he fails to consent within the time named, a new trial will be granted.',
Crow, C. J., Mount, Morris, and Parker, JJ., concur.