Wheeler v. North American Transportation & Trading Co.

Per Curiam. The specifications of error in these cases relate only to the charge- to the jury and a refusal to strike portions of the complaint. The eases are in all essential respects similar to that of Smith v. North American Transportation & Trading Co., 20 Wash. 580 (56 Pac. 372), which was decided by this court February 23, 1899. In addition, however, to the questions raised and decided in that case, there are two assignments in the present case which may be referred to. The first relates to certain language used by the court in its charge in regard to the defense of “the act of God,” which was relied upon by the appellant. We have examined the instruction and also the entire charge. Considered as a whole, we regard it as being a very fair and able exposition of the law of the case. The particular words complained of in the assignment under consideration were explanatory merely, and, whether considered by themselves or in connection with the remainder of the instruction, we think they are not [705] open to the criticism which is made, and no error was committed hy the court in using the language complained of. The remaining assignment relates to a ruling denying defendant’s motion to strike two paragraphs in the complaint relating to damages claimed for loss of time at Seattle (the point of departure), and thereafter receiving evidence at the trial under these paragraphs. It appears from the record that, upo’n appellant’s motion, paragraph 13 of the complaint, which alleged damage for loss of time at Dawson (the point of destination), was stricken. We think the court did not err in either of these rulings. No reversible error appearing, the judgments m these cases must be affirmed.