66 Wash. 507 | Wash. | 1912
Lead Opinion
Plaintiff is a carpenter, and at the time of the injury complained of was employed by the defendant in assisting in the work of putting its mill in a state of repair. A part of the work was the institution of some new live rolls, and in order to work from below, a ladder had been placed, leading from the lower floor up to and under the frame upon which the live rolls were placed. Plaintiff was working under the direction of a foreman who had, according to the testimony of the plaintiff, told him, at the time
It is contended that respondent cannot recover because, the ladder being an instrument of such simple construction, any danger attending its use would be as well within the knowledge of the respondent as of the appellant; that no legal liability would be imposed upon appellant to warn or protect respondent, within that line of cases which we have just followed in Cole v. Spokane Gas and Fuel Co., ante p. 393, 119 Pac. 831. This might be held, if the accident had resulted from some defect in the ladder itself. But the testimony takes this case out of that rule. The evidence shows that respondent had been told by the foreman not to use the ladder unless it was made secure. Appellant’s foreman nailed the ladder in its first position; so that, when it had been moved and replaced, respondent had a right to assume that it had been made secure in its changed position. These facts carry the case within the rule of Withiam v. Tenino Stone Quarries, 48 Wash. 127, 92 Pac. 900, where the text of Labatt, Master & Servant, § 439, was adopted.
“In other words, if a danger is not so absolute or imminent that injury must almost necessarily result from an obedience to an order, and the servant obeys the order and is injured, the master will not afterwards be allowed to defend himself on the ground that the servant ought not to have obeyed the order.”
We think that the questions of contributory negligence and assumption of risk were for the jury.
Two physicians attended respondent after he was injured. He called one of them as a witness. The physician testified as to the character of the injury, and offered an opinion as to its permanency. Among other things, he said that, aside from the fracture, there was a severe laceration of the ligaments. Appellant called the other physician and sought to show by him that there was no laceration of the tendons; that the injury was what is known as a Pott’s fracture from which permanent injuries are less likely to occur than if complicated by lacerated tendons. It is contended that respondent, by putting one physician on the stand, waived his privilege to object to the other being heard. We do not find it necessary to pass upon this disputed question in the law; for, granting that the testimony was improperly excluded, we think no prejudice sufficient to warrant a new trial could have occurred. The physician whose testimony was rejected had examined respondent the day before, and was allowed to testify fully as to the then condition of respondent’s ankle. He found it to be in “fair condition.” “It has a little anchylosis; a little stiff; otherwise he has got a good ankle.” He found no swelling or enlargement. He also testified that a Pott’s fracture would necessarily cause a stiffening (anchylosis), and that use of the limb soon after the fracture would tend to increase that condition. This testimony fairly negatives the testimony and opinion of the first physician, for we may assume that, if
Einding no reversible error, the judgment is affirmed.
Crow and Ellis, JJ., concur.
Concurrence Opinion
(concurring) — While I have no fault to find with the doctrine announced by Judge Chadwick, I think it conclusively appears for another reason that the action of the court in regard to the rejection of testimony was without prejudice. It is not contended by the appellant that the verdict was excessive. In fact, it was candidly announced by the attorney for the appellant in Ms argument that no question was raised as to the excessiveness of the verdict. That being true, the testimony offered was entirely without materiality, and therefore its rejection was without prejudice.
I therefore concur in the result.