McAllister v. Seattle Brewing & Malting Co.

• Decision Date: 19 October 1906
• Citation: 87 P. 68,44 Wash. 179
• Court: Washington Supreme Court
• Parties: McALLISTER v. SEATTLE BREWING & MALTING CO.

87 P. 68

44 Wash. 179

McALLISTER v. SEATTLE BREWING & MALTING CO.

Supreme Court of Washington

October 19, 1906

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by Orville McAllister, an infant, by his guardian ad litem Lavica McAllister, against the Seattle Brewing & Malting Company. From an order granting a new trial after verdict in favor of plaintiff, he appeals. Reversed, with instructions to enter judgment on the verdict.

John W. Roberts, for appellant.

C. A Reynolds and W. H. Brinker, for respondent.

FULLERTON J.

The appellant, a minor of the age of nine years, lost two of his toes on a pulley or sheave wheel operated by the respondent a brewing company, and brought this action to recover for the injury suffered. The pulley in question was placed in the center of one of the spur tracks of the Northern Pacific Railway Company, and was used by the respondent in connection with a wire cable and donkey engine to move cars up and down the track for the more convenient operation of its brewing plant. The brewing plant of the respondent is situated at Georgetown, in King county, just east of the main tracks of the railway company which run parallel with, and immediately in front of, the plant. There is a street in Georgetown called Nora avenue which runs at right angles to the railway tracks crossing them just south of the brewery company's plant. This street had never been condemned across the railway company's right of way, and all that part lying east of the track had been vacated by ordinance of the town council some time prior to the accident, the vacated portion becoming thereby the private property of the respondent. The street, however, was not closed to travel, and at the time of the accident was used by a considerable number of the people who found it the most convenient means of passing to and from their own property and the business section of the town. The street had never been improved, and travel over it took the most convenient way. Where the street abutted on the railway right of way there was an embankment of considerable height to avoid which the travel turned, one track going next to the brewing company's property and the other some distance the other way, neither passing any nearer than perhaps 25 feet of the center of the street where it crossed the right of way. The sheave wheel in question was placed in the center of the street on the railway company's right of way, where these tracks diverged, having been placed there by the respondent with the railway company's permission. It had no covering or protection of any kind, and was used at all times of the day the business of the respondent required it. While motionless the pulley was harmless, but when in motion it had all the dangers incident to machinery of its class. Just prior to the accident the minor appellant in company with another boy of about his own age, while passing over the railway track on the path next the respondent's property, was attracted to the wheel and went over to examine it. The boys do not agree in their testimony as to the conditions immediately preceding the accident; but the boy who accompanied the appellant seems to have the clearer idea of what happened. He testifies that the cable was being drawn slowly through the pulley when they reached it, and that the appellant put his foot on when it started up rapidly drawing his foot between the cable and the pulley, with the result as above stated. The trial judge first submitted the case to the jury which returned a verdict for the appellant. Afterwards he granted a motion for a new trial on the ground that the evidence, as a matter of law, did not justify a verdict. This appeal is from the order granting the new trial.

The motion for a new trial was not filed before it was served on the appellant, and a motion was made in the court below to strike it for that reason. The respondent, in answer to the motion, asked, and over the objection of the appellant obtained, from the court an order extending the time within which to move for a new trial, and the motion for a new trial on which the court acted was served pursuant to that order. The appellant urges here that the trial court was without power to make an order extending the time in which a motion for a new trial could be filed, and he insists that the order appealed from is erroneous for that reason. It is conceded that this court has, in a number of cases approved the practice followed...