69 Wash. 43 | Wash. | 1912
The appellant owns and operates a coal mine, located at Spiketon, in Pierce county. The respondent was employed by the appellant to work as a miner therein, and while so engaged with others driving a gangway or tunnel along the coal vein, was injured by a piece of shale rock falling upon him from the roof of the gangway. In his complaint the respondent stated the cause and manner of his injury in the following language:
“That while employed by defendant at mining in said vein of coal on said 23rd day of September, 1910, plaintiff and his partner, John Johnson, came to a place in said vein about
To the complaint the appellant interposed a general demurrer, which was overruled, whereupon it answered to the merits. A trial was thereafter had, which resulted in a verdict and judgment for the respondent.
The appellant first assigns that the court erred in refusing to sustain its demurrer to the complaint. It is contended that the complaint shows upon its face that the respondent was guilty of contributory negligence. This contention has its basis in the allegation in the paragraph quoted to the effect that the respondent observed, prior to his injury, that a “large piece of shale rock was hanging from the ceiling apparently somewhat unsafe.” It is argued that, while the act of the appellant in failing to keep a sufficient supply of timbers or props to enable the respondent to properly protect his working place may have relieved the respondent from the risk of injury by objects falling from the ceiling of the gangway he assumed in his contract of hire, it did not excuse contributory negligence on his part, and that it was
“The appellant next contends that the court erred in refusing to rule, as a matter of law, that the respondent was guilty of contributory negligence. All that the evidence shows on this question is that the respondent continued in his work after he had knowledge of the fact that the collar and set screw which caused his injury were uncovered. But it will hardly do to say that an employee is guilty of contributory negligence for merely working in a dangerous place when he does not assume the risk of injury for working therein. It is true that in such cases contributory negligence and assumption of risk approximate, and it is difficult to draw a line between them, but we think that, to convict an employee of contributory negligence for working in a place where he does not assume the risk of injury, it must be shown that he did not use care reasonably commensurate with the risk to avoid injurious consequences; in other words, that it was some negligent act of his own' that caused his injury, and not alone the dangers of his situation.”
In Starck v. Washington Union Coal Co., 61 Wash. 213, 112 Pac. 235, the same question was presented. In that
“It is true that in Green v. Western American Co., supra, which was the first case in this jurisdiction to lay down the rule that the master assumed the risk where the statutory requirements in regard to safe place and appliances had not been complied with, there were some expressions used by the court which might readily lead to the conclusion that the doctrine claimed for it by the appellant was true, viz., that while the plaintiff in an action for damages in a case brought under the statute for violation of, failure to guard, or make safe, would not be held to have assumed the risk, he would be held to have been guilty of contributory negligence for working in an unsafe place. But this doctrine certainly never was intended by the court to be carried so far as to hold that a plaintiff would be held guilty of contributory negligence for working in a place where he would not be held to have assumed the risk in working. No court would trifle with the rights of a litigant to such an extent as to hold that he could recover in a given case because he did not assume the risk of working in a certain place, and then hold that he could not recover because he was guilty of contributory negligence in working in that certain place. This would be allowing words and terms to control a principle. . . .
“There can be no question but that cases might arise where contributory negligence would be an element in the case available to the defendant, but the two propositions have no real relation to each other. One relates to the risks assumed by an employee in the entering into a given service, and the other to the vigilance to be exercised by the em
These cases are conclusive of the contention made here. The respondent was not guilty of any overt act of negligence; all that he did was to work in a place “apparently somewhat unsafe;” and since he did not assume the risk of injury for working therein, it would be, as was said in the case last cited, “allowing words to control principles to hold that he was guilty of contributory negligence.”
The respondent recovered judgment in the sum of $4,000. It is argued that this is excessive. The evidence shows that the respondent was 31 years of age at the time of his injury; that he was earning $100 per month; that his leg was broken in two places, and at the time of the trial was not sufficiently healed to enable him to walk without crutches; that there was a thickening of the thigh bone, a bending of the leg forward, a loss of motion of some 90 degrees of the knee joint, a stiffening of the ankle; that the injury was permanent and the respondent incapacitated from following his occupation of a miner. In view of the record, we cannot hold the damages excessive.
The other errors assigned are met by what we have said concerning the demurrer to the complaint.
The judgment is affirmed.
Dunbar, C. J., Mount, Morris, and Ellis, JJ., concur.