Berger v. Metropolitan Press Printing Co.

• Decision Date: 02 December 1910
• Citation: 61 Wash. 35,111 P. 872
• Court: Washington Supreme Court
• Parties: BERGER v. METROPOLITAN PRESS PRINTING CO.

111 P. 872

61 Wash. 35

BERGER v. METROPOLITAN PRESS PRINTING CO.

Supreme Court of Washington

December 2, 1910

Department 2. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by William Berger against the Metropolitan Press Printing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Kerr &amp McCord, for appellant.

Fouts &amp Gould and Milo A. Root, for respondent.

DUNBAR J.

This is an action for damages for the loss of an arm. The arm was torn off by the appellant's printing plant, while respondent was attempting to assist one Carter to put on a belt which had worked off of a pulley attached to a certain shaft. This case has previously been before this court, and is reported in 55 Wash. 422, 104 P. 617, to which reference is made as a part of the history of the case. In that trial at the close of the plaintiff's testimony, a motion for a nonsuit was sustained. The judgment of the lower court was reversed, and the cause remanded for trial. Upon retrial, judgment was rendered in favor of plaintiff, from which judgment this appeal is taken.

It was determined on the former appeal, and so expressed in the opinion, that the notice of injury was sufficient, and that there was sufficient proof of negligence to pass to the consideration of the jury, and these determinations went to the lower court as the law of the case. A comparison of the evidence offered at the prior trial with the evidence submitted at this trial convinces us that there was at least as great a weight of testimony submitted by the respondent at the last trial as there was at the first one. Of course, we have reference to the testimony submitted by the respondent for at the first trial not testimony was offered by the appellant, and the case here will have to be determined upon the testimony of the respondent; that is to say, if sufficient legal testimony was offered by the respondent to sustain his contention, the fact that it was disputed by the appellant would not justify a reversal of the judgment. But even examining the testimony in this case as an original investigation, we are still of the opinion that the respondent's testimony was sufficient to show negligence on the part of the appellant, and that it cannot be said that the testimony as a whole shows contributory negligence on the part of the respondent as a matter of law. If learned counsel's statement of what the record shows could be received as the uncontradicted testimony in the case, his argument would be irresistible; for it is evident that, if respondent, with another fellow servant and without authorization, went outside of the...