The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-02-08
THE CABLE ROAD DAMAGE SUIT.
Interesting Potnts OF Law Raised OF
Motion for Non-Suit.

Interesting Pofnta OF Law Raised on
Motion for Non-Suit.
The hearing OF the case of Mary f. Bren-
nan against the Front Street Cable Rail-
, way Comapny was resumed yesterday
morning in the superior court before
Judge Osborn, and at O'Clock in the after
noon motion for a non-suit was made by
the defendant and taken under advise
ment.
The defendants motion presented new
question, and one of interest TO attorneys.
1t was contsnded by the defendants attor-
neys in support of the motion that, as at
common law no cause of action existed on
account OF the death of person caused by
the alleged negligence of another, the
cause OF action was created by section
Of the code of 1881, and that the
right TO prosecute was given solely
TO the parties herein named. By the
above section this right is given solely to
the heirs or the personal representatives
OF the deceased. The plaintiff is the
widow of the deceased, and it is alleged
that she is his sole heir. The evidence
showed that the deceased left no children,
but that two sisters survived him. Under
the law of this state the heirs of the de-
ceased would De his widow and his sisters.
The defendant therefore contended that
as the plaintiffs cause OF action depended
upon the statute, she could not prosecute
the action alone. In resisting the action
plaintiffs counsel urged that the widow
would be entitled to prosecute the action
under section Is of the code of 1881. but
this contention was opposed by the de-
iendant's counsel, on the ground that the
latter question related solely to rights of
action accruing to the deceased for per-
sonal injuries subsequently resulting in
his death, and not to cases in which the
death was instantaneous. The court took
this question under consideration. and
will announce his decision upon 1t this
morning.
On tho second ground of the defendants
motion it was urged that the plaintiffs
own testimony conclusively showed that
the deceased was guilty of negligence,
directly contributing to his death. From
the evidence it appeared that the deceased
had lifted two pianks from over the sheave
wheel. which conducts the cable, and had
gone down into the boie to oil the wheel.
One Of the witnesses testified that. when
he came out of this hole, the superintend-
ent called to him to leave the planks alone,
oi9 hurry up 10 get out the Cur. ne there
upon left the opening over the wheel I'M
covered and went back to the power house.
After the dummy of the first train had
been run out and was being pushed for
ward on the track towards the sheave
wheel, whore the grip would pick up the
cable. Brennan took an oil can. and, run
ming out, jumped on the dummy and set
the can down. The dummy by this time
was opposite the hole over the sheave
wheel. and Brennan, turning partially
around, jumped from the dummy, and
was torn to pieces by the wheel. The
court, while expressing the opinion that
II was negligent for one who knew of the
existence of the hole TO jump from the car
without looking, or facing about SO that he
could see 1t, stated that it entertained a
oouot whether granting non-suit upon
tins ground would not be invading the
province Of the jury, and that therefore
be thought that the question should be
submitted TO the jury.