Ladouceur v. Northern Pacific Railroad

33 P. 556, 6 Wash. 280, 1893 Wash. LEXIS 277

• Court: Washington Supreme Court
• Decided: April 29, 1893
• Docket: No. 787
• Status: Published

Opinions

The opinion of the court ivas delivered by

Scott, J.

This case was formerly before the court (4 Wash. 38, 29 Pac. Rep. 942) upon an appeal taken by the plaintiff from a judgment of non-suit rendered against him on the ground of contributory negligence. The case was reversed and remanded, and was again tried in the superior court, and a judgment rendered in favor of the plaintiff, whereupon the defendant brings this appeal.

The only grounds of error alleged are that the verdict is against the evidence, and that from the whole evidence it appears that plaintiff is chargeable with contributory negligence. These grounds are not well taken. The case presented by the plaintiff is, if anything, stronger than that presented upon the former appeal, and the decision rendered upon that appeal is conclusive of this one.

There is now testimony to show that the plaintiff did look for a train while on the level space before going down the incline, and that he did not see any. There was no such testimony in the record before. The evidence is abundantly sufficient to sustain the verdict, and the jury were the judges of the truthfulness of it. In our opinion there is nothing in the case to show that the plaintiff is necessarily chargeable Avith contributory negligence. The case Avas evidently submitted to the jury under faArorable instructions for the defendant, as no point is raised over any ruling of the court throughout the trial in any particular.

It follows that the judgment must be affirmed.

Dunbar, C. J., and Anders, J., concur.