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STATUTES

CITED AND CONSTRUED

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CONSTITUTION OF WASHINGTON,

Page. Art. 1 $ 12

476 1 $ 16

612 1 $ 21

180 1 $ 22

417 4 $ 6

180 4 $$ 10, 11.

27 4 $ 16

529 11 $$ 4, 11.

496, 497 11 $ 10

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REMINGTON AND BALLINGER'S
CODE-Continued.

Page. Section 481

202 482

660 563, subds. 3, 4..... 48 563, subd. 5. .49, 50 571, 572.

50 785, 793.

693 901

516 931

81 943

569 988

99 991

623 1075

689 1134

637 1138, 1147..

638 1313

201, 202 1716

117 1716, subd. 3.

306 2006

423 2159

131 2172

238 2253, 2294

422 2726

530 2746

438 2924

236-238 2931

238 2970

678 2977

15 2984

187 3012

404 3024, 3025.

405 3512, 3514, 3515.. 359 3670

620 3686.

68 3701, 3702. 185, 189 4891, 4893.

651 4893, subd. 7.

650 5291 ..

620 5916, 5925, 5927.... 19

BALLINGER'S CODE. Section 2176...

2937

66

94 24

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REMIXGTON AND BALLINGER'S CODE. Section 94

.179, 416 103

179 143

181 162

680 173

.458, 459 183

491 202

84 235

64

66

66

582 259, 261

491 264

304 265

305 303

582 388, 390.

500 408

305 464

582 474

.99, 678

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p. 145

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p. 316

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p. 398

64

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p. 536

60

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REMINGTON AND BALLINGER'S

SESSION LAWS-Continued. CODE-Continued. Page.

Page. Section 5980.

323

1899, p. 222, $ 15. ..24, 25 5988-5991, 5996-6000

p. 361, § 122.

359 6009

1901, Extraordinary Session,

325 6226

p. 13, ch. 6.. 275

423 1901, p. 7... 6275 24, 25, 26

519 6288

p. 99, ch. 62, $ 5. 631

94 6292

.495, 496
1903, p. 63, ch. 51.

238

p. 363, ch. 174.
6524, 6529
28

405 6531, 6532, 6535.

1905, p. 108, § 1 649

568 6537 27

614 6547

28
p. 169, $ 9.

58 6595

58
p. 270, ch. 146.

179 6620

94
1907, p. 102, ch. 63.

179 6632

655
p. 119, ch. 194.

688 6754

595
.94, 96
6864

519
p. 319, $ 10..

597
6865
521

460, 680 7122

568
p. 498, ch. 216.

521 7636-7639

539
p. 500, $ 2

340
7768
595

614 7777

597
p. 582, ch. 236.

512 7782

596
p. 657, $$ 53-56.

539 7971

550
p. 691

.242, 250 7973

1909, p. 75, $ 3. 563

495 7975

.538, 547
p. 80, $ 12.

498 8148

512
p. 113, ch. 62.

405 8308, 8316.

569
p. 131, ch. 73.

179, 416
8459
25

495, 496 8627

614
p. 191

614 8648

.242, 250

p. 519, ch. 137. 323, 324 8766 ..95, 96

27 8781, 8784-8786.. 194

p. 569, ch. 147, $$4, 5.. 550 8785 ..

195
p. 570, $ 3.

563 8957-8963

.652
p. 572, ch. 147, $ 5..

538 9183

341
p. 572, $$ 3, 5,

547 9234

p. 723, $1. 148

596 9235

149
p. 731, $ 8.

25 9254, subd. 2..

659
p. 857, ch. 237.

404 933912

p. 890, ch. 249.

422
495
9438

498
P. 901, $ 12.

422 SESSION LAWS.

CHARTERS. 1890, p. 304, $ 2...

Seattle, art. 25, $81, 2, 7-10

27 1893, p. 266, ch. 109, $3. 214

470-472 1895, p. 3.....

516

ORDIXANCES. ch. 109, $$ 9-12, 17-21, 30. 325 Seattle, $$ 1-4..........501, 502

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p. 153

p. 567

44

CASES

DETERMINED IN THE

SUPREME COURT

OF

WASHINGTON

(No. 8231. Department Two. March 25, 1910.)

Sarah J. Moore et al., Respondents, v. Great NORTHERN

RAILWAY COMPANY, Appellant.

RAILROADS-CROSSINGS-DEFECTS - DEATH CAUSE - EVIDENCESUFFICIENCY. The evidence is insufficient to show that the death of a drayman, who fell from his wagon and was killed while driving across a railroad track, was due to a defective crossing, because too narrow and the rails too high and liable to cause the wagon to slew to one side when crossing at an angle, where it appears that the crossing was fourteen feet wide, that there was no occasion for the drayman to drive across at an angle, and that he had attempted to cross the track a few feet east of the crossing prepared by the railroad company; there being no liability where one negligently turns aside from a crossing prepared and uses another way.

Appeal from an order of the superior court for Lincoln county, Neal, J., entered April 29, 1909, granting a new trial, after dismissing the jury and directing judgment in favor of the defendant, in an action for wrongful death. Reversed.

F. V. Brown and J. J. Lavin, for appellant.

W. E. Southard and Southard & Southard, for respondents.

Mount, J.-Respondents brought this action to recover damages on account of alleged negligence of the appellant,

"Reported in 107 Pac. 852.

Opinion Per MOUNT, J.

(58 Wash.

us.

which negligence it is alleged caused the death of Michael Schabb, the father of Jennie Schabb and, at the time, the husband of respondent Sarah J. Moore. The cause was tried to the court with a jury, and resulted in the discharge of the jury and a directed judgment for the defendant. Thereafter the respondents filed a motion for new trial upon several grounds. The motion was based upon the record of the case and affidavits of newly discovered evidence. This motion was not heard by the judge who tried the case, but was heard by his successor upon the record which is now before

The court made an order granting a new trial without specifying the ground therefor. This appeal is from the order granting the new trial.

The case is presented here solely as one of law, to the effect that, under all the facts which were received and offered in evidence at the trial and those discovered after the trial, no case is made out sufficient to go to the jury. No other question is presented. The facts are as follows: The appellant in the year 1905 maintained a station or depot in the town of Wilson Creek. A railway track, called a house track, extended east and west on the north side of this depot. The town is north of this house track. On the east side of the depot and to the south of the house track, there was an L-shaped platform, the short end of the L or platform being at right angles to the house track and near to it. The long side of the platform extended east and west parallel with the house track and about thirty-three to thirty-six feet distant therefrom. This platform was about three feet high. The space between the house track and the platform was covered with soft cinders. At the northeast corner of the depot, where the west end of the platform was nearest the house track, a crossing had been constructed and maintained by the railroad company for the use of teams in going to and from the platform. This crossing was made by laying boards lengthwise of the rails on the railroad ties, on both sides and between the rails. These boards were about six

Mar. 1910)

Opinion Per MOUNT, J.

drive away.

teen feet long. They were not thick enough by two or three inches to come to the level of the tops of the rails. Some steps extended from the platform to the ground at the northeast corner of the depot near this crossing, so that the length of the crossing was reduced about two feet, leaving about fourteen feet space for the crossing.

On the evening of December 26, 1905, the deceased, Michael Schabb, who was a drayman, hauled some trunks from the residence part of town to the depot. He drove over the crossing, made a turn of his wagon in the angle of the platform, and backed his wagon up against the long part of the platform. He unloaded the trunks and attempted to

It was quite dark, but he was seen to drive away. After he had gone but a few feet the wheels of the dray were heard to strike the rails of the house track, and were seen to “slew to one side," and Mr. Schabb “was hurled suddenly out of the dray, apparently over the front end thereof." The team of horses moved up a few feet and stopped. The witness who saw this paused for a moment, and, concluding that Mr. Schabb was not hurt, passed into the depot. A few minutes later Mr. Schabb was found dead under the left front wheel of his wagon. His neck was broken. He had attempted to cross over the railroad tracks a few feet east of the crossing prepared by the railway company.

It is alleged, that the appellant was negligent for the reason that the crossing was defective, in that the rails extended above the planking so that it made the crossing dangerous; that the crossing was located too close to the depot and did not extend a sufficient distance to the east. It is argued by the respondents that the space between the platform and the house track was too narrow, and the soft cinders thereon made it difficult for teams to turn around therein. The appellant argues that the facts are insufficient to go to the jury, because (1) it is not shown that the decedent came to his death by reason of being jolted from his wagon, and

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