Helbig v. Grays Harbor Elec. Co.

• Decision Date: 20 February 1905
• Parties: HELBIG v. GRAYS HARBOR ELECTRIC CO.
• Court: Washington Supreme Court

79 P. 612

37 Wash. 130

HELBIG v. GRAYS HARBOR ELECTRIC CO.

Supreme Court of Washington

February 20, 1905

Appeal from Superior Court Chehalis County; Mason Irwin, Judge.

Action for personal injuries by Herman Helbig against the Grays Harbor Electric Company. From a judgment for plaintiff defendant appeals. Affirmed.

J. B. Bridges, for appellant.

W. H Abel and Ben Sheeks, for respondent.

RUDKIN J.

On and prior to the 19th day of September, 1903, the defendant, the Grays Harbor Electric Company, was engaged in the construction of a street railway in the city of Aberdeen. Heron street, of said city, along which such street railway was under construction, was planked throughout its entire length, and it became necessary to cut out and remove a portion of the planking for the purpose of driving piles and laying the rails. This planking was cut out for a width of about seven feet at the intersection of Heron and Washington streets, and, after the rails were laid, a temporary crossing was constructed where the planking had been removed. There is a conflict in the testimony as to the nature of this temporary crossing. The plaintiff was riding his horse over this temporary crossing, and, according to his testimony and the testimony of his witnesses, a loose board or plank flew up from the crossing and caused the horse to shy, throwing the plaintiff to the ground, and thereby causing the injuries complained of. A verdict was returned for the plaintiff, and from the judgment entered thereon this appeal is taken.

1. The first error assigned relates to the denial by the court of a motion to make the complaint more definite and certain. The injuries suffered by the respondent were thus described in his original complaint: 'Plaintiff's collar bone was broken, and he was otherwise thereby greatly bruised and injured, and caused much pain and suffering, to his damage,' etc. Inasmuch as no proof was offered as to any injury suffered by the respondent, except as to the broken collar bone, and the other injury specifically described in the amendment allowed by the court as hereafter stated, the appellant was not prejudiced by the denial of the motion to make the complaint more definite and certain in relation to the injuries received; and we are not called upon to decide whether the other general allegations were sufficiently specific to entitle the respondent to prove other injuries not particularly described in his complaint or in the amendment.

2. On the examination of one of the expert witnesses produced by the respondent, it appeared that some other bone, aside from the collar bone, was or...