Abby v. Wood

• Decision Date: 06 August 1906
• Citation: 43 Wash. 379,86 P. 558
• Parties: ABBY v. WOOD.
• Court: Washington Supreme Court

86 P. 558

43 Wash. 379

ABBY v. WOOD.

Supreme Court of Washington

August 6, 1906

Appeal from Superior Court, Columbia County; Chester F. Miller Judge.

Action by Perry Abby against George E. Wood. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Miller & Fouts and J. G. Thomas, for appellant.

M. M Godman and Leon B. Kenworthy, for respondent.

ROOT, J.

This was an action by plaintiff to recover for the death of a minor child, killed by a runaway team which, it was alleged escaped from defendant by reason of his intoxicated condition. The material facts were about as follows Plaintiff and wife were farmers, living in Columbia county near Waitsburg. On May 7, 1904, plaintiff's wife was driving in a buggy along a public road in said county with her child, an infant not quite one year old, when defendant's team ran into them and killed the child. Defendant had been in Waitsburg during the day, and was to some extent intoxicated when he started home. As to the amount of his drinking and the extent of his intoxication there was considerable conflict in the testimony. The defendant claimed that he was not intoxicated, but that his horses, without fault on his part, became unmanageable and the wagon running into a washout or chuck hole, he was thrown to the ground, and the team thereupon ran away. As to the manner of his driving and the occasion of his being thrown or falling from his wagon, there is also a conflict in the testimony. The following interrogatories were submitted to the jury, and were answered as herein indicated, to wit: 'Q. Was the defendant so intoxicated that he could not control his team? A. No. Q. Was the loss of control of his team by defendant due to his being intoxicated? A. Yes. Q. Was the loss of control of his team by defendant caused by the hack running into or dropping into a washout or chuck hole? A. No.' The jury returned a general verdict for plaintiff in the sum of $2,160.20. Judgment for said amount was entered in favor of plaintiff, from which this appeal is taken.

Appellant claims that the evidence does not show any negligence on his part; that it does not show that he had been drinking to excess, or that he was intoxicated, or that his intoxication was responsible for he escape of the horses. He claims that the horses, for some reason, commenced to run, and that he used every means possible to stop them, and that while endeavoring so to do, the wagon ran into a washout or chuck hole and precipitated him from the wagon, whereupon the team ran away with the result hereinbefore mentioned. While the evidence as to all of these matters was conflicting, yet we do not find that there was a preponderance in favor of the appellant upon any of these propositions. This being true, and there being a sufficient amount of competent, material evidence, which would, if believed, amply sustain the special finding and verdict, we cannot set the latter aside on account of these matters. Appellant further claims that respondent's wife was guilty of contributory negligence in that, when she heard the team coming behind her, she did not...