Carroll v. Washington Water Power Co.

• Decision Date: 27 December 1909
• Citation: 105 P. 1026,56 Wash. 467
• Court: Washington Supreme Court
• Parties: CARROLL et al. v. WASHINGTON WATER POWER CO.

105 P. 1026

56 Wash. 467

CARROLL et al. v. WASHINGTON WATER POWER CO.

Supreme Court of Washington

December 27, 1909

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Angela Carroll and another against the Washington Water Power Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Kenyon & Setters and Nuzum & Nuzum, for appellants.

H. M Stephens, for respondent.

RUDKIN C.J.

This is an appeal from a judgment in favor of the defendant in an action to recover damages for personal injuries. The errors assigned are all based upon the instructions of the court, and the only exception taken to the instructions is contained in the following words at the foot of the charge: 'The plaintiff wishes to as a matter of precaution take exception to each and every word, sentence subdivision, phrase, and each and every of the various allegations and instructions given by the court, and each and every one of the instructions given by the court to the jury.' The instructions to which the foregoing exception was taken are 25 in number, covering 26 pages of the transcript and 37 pages of the respondent's brief. The correctness of but 7 of these 25 instructions is challenged by the appellants. The statute in force at the time of the trial of this action provided as follows: 'Exceptions to a charge to a jury, or to a refusal to give as a part of such charge instructions requested in writing, may be taken by any party by stating to the court, after the jury shall have retired to consider of their verdict, and if practicable before the verdict has been returned, that such party excepts to same, specifying by numbers of paragraphs or otherwise the parties of the charge excepted to, and the requested instructions the refusal to give which is excepted to; whereupon the judge shall note the exceptions in the minutes of the trial, or cause the stenographer (if one is in attendance) so to note the same.' Section 5053, Ballinger's Ann. Codes & St. (Pierce's Code, § 670). If the purpose of an exception is to direct the attention of the trial court to the claim of error, to the end that the error may be corrected, what effect can be given to the exception reserved in this case? No error was pointed out. No error was even claimed, as the exception was taken as a matter of precaution only. This question has been before this court repeatedly, and we have uniformly held that such exceptions are of no avail. Meeker v....