62 Wash. 226 | Wash. | 1911
Lead Opinion
This is an action to recover damages from the defendants, alleged to be the result of their negligently causing the death of George Cole, the husband and father of the plaintiffs. A trial before the court and a jury resulted in a verdict and judgment in plaintiffs’ favor, from which the defendants have appealed.
The argument of learned counsel for appellants is directed almost wholly to the alleged error of the trial court in denying their challenge to the sufficiency of the evidence to support the verdict and judgment in respondents’ favor, made at the close of the trial and renewed in their motions for judgment notwithstanding the verdict and for a new trial.
The evidence was in serious conflict upon some of the important questions, but a careful review of the record convinces us that there was competent evidence sufficient to warrant the jury in concluding that the following facts were established. On February 19, 1910, the appellants were contractors engaged in constructing the iron framework of the Fidelity Trust building in Tacoma, and George Cole, the deceased, was then employed by them as a structural iron worker on the building. On that day Cole fell from the top of the north wall of the building, which was then up to the thirteenth floor, to the roof of another building some six stories lower, resulting in his death. At that time the iron framework and walls of the building had been completed up to the twelfth floor. The north wall had been completed up to the thirteenth floor, and the iron framework had been put in place on the thirteenth floor on a considerable portion of the north half of the building. There was placed about the center of the building on the twelfth floor a large derrick which was used for hoisting the material from the street, and also for placing the material at various points on the building as became necessary. This derrick had a long swinging boom, from the end of which hung the cable for handling the material. This cable ran from the iron or material to be handled, through a pulley at the outer end of the boom, down to
It will thus be seen that the material could, by this derrick, be placed at any point on the story being constructed, provided there was nothing to interfere with the raising, lowering or swinging of the boom. Immediately preceding the falling of Cole off of the north wall, he and another iron worker named Mitchell, and the forem'an, were attempting to place in permanent position an iron channel beam, about twelve feet long and weighing about 300 pounds, along the inner edge of the north wall at the thirteenth floor. At that time the framework of that floor on the north portion of the building so interfered with the lowering and swinging of the boom that it was not possible to suspend and lower this channel by the cable from the outer end of the boom exactly over the final resting place of the channel. The nearest it could be so suspended over its final position was about six feet to the west and about two feet to the south inside the wall. When put in position it was to be attached by rivets or. bolts at its east^ erly and westerly ends to I beams resting upon the wall, and running at right angles thereto towards the interior of the building. These I beams were then already in place. Cole
While the channel was in this position, the foreman, standing on the westerly I beam immediately to the south of the suspended channel, took hold of it with his hands; while Mitchell, standing partly on the wall end of the westerly I beam and partly on the wall, being on the north side of the suspended channel, took hold of it with his hands. At the same time Cole stepped from his position at the wall end of the easterly I beam along the top of the wall to a point about half way between the I beams, which were about twelve feet apart, that being the length of the channel, for the purpose of taking hold of the easterly end of the channel and assisting in drifting it to its proper position as it would be lowered. He there took hold of the channel as the others did, reaching towards the interior of the building about two feet, where it was suspended. The foreman then communicated to one Lee, who • stood in a position some distance away towards the foot of the derrick, a signal to lower the channel. • This was given by word of mouth, was plainly heard by Mitchell, and must have been heard by Cole, who was then not over ten feet from the foreman. Lee in turn communicated a signal to one Huston, the bell man, who stood by the bell wire at the foot of the derrick, and who in turn communicated a bell signal to the men in charge of the engine below. The engine and the men
The wall had been built only the day before. It was green and had not yet set, so the bricks were easily displaced; and in attempting to regain his balance, Cole’s feet loosened a couple of bricks, thus rendering his footing less secure. There is evidence tending to- show that- this condition of the- wall was known to the foreman, but there is no evidence that Cole knew of it, or that its appearance indicated such insecure condition. There was a scaffold, which had been used by the masons in building the wall, some three to five feet below its top on the inside of the wall. The structural iron workers did not use scaffolding in their work, and there is no evidence to indicate that there was any necessity of scaffolding for their work. It does not appear that there was anything unusual in Cole going upon the wall, though there is some conflict in the evidence as to the necessity of Cole going upon the wall at this particular time.
The communicating of the wrong signal to the engineer, or the error in obeying the signal if it was correctly given, there; by causing the channel to swing away from the wall instead of lowering it, while Cole stood there having hold of it with his hands, is the principal act of negligence relied upon by respondents: They also rely upon the alleged negligence of appellants in attempting to place the channel before the wall
It seems to us that the question of whether or not the channel was swung away from Cole as the result of an erroneously communicated signal, or in disobedience of a proper signal, when he had hold of the channel while standing on the wall, was the proximate cause of his falling, and as to what extent the insecure condition of the wall, by reason of its recent construction, contributed to his fall, were questions of fact which cannot be decided by us as matters of law in the light of this record.
It is contended that the appellants were not responsible for the condition of the wall, since the building of it was no part of their contract. We think there was good ground for contending that appellants’ foreman knew of the unsafe condition of the wall, and also knew that in placing this channel the iron workers would likely walk upon the wall as Cole did, and also that Cole was not warned of the condition of the wall. However, even if appellants were not responsible for the condition of the wall as a concurring cause of Cole’s fall, that fact would not relieve appellants if the jury believed the fall of Cole would not have occurred but for the error in communicating or obeying the signals, thereby causing thé wrong and unexpected movement of the channel. And we have seen, this question was for the jury. This contention is well answered by the mere statement of the elementary rule found in-2 Labatt, Master & Servant, at § 813, as follows:
“Where several causes concur to produce certain results, any of them may be termed ‘proximate,’ provided it appears to have been an efficient cause. The general rule applicable to all cases illustrating this situation, except those in which the contributory negligence of the servant himself is involved, is that, in order to establish the right of action, it is merely*232 necessary to show that one of the co-operating causes of the injury was a culpable act or omission for which the master was responsible. This rule holds good whether the other causes were also defaults for which he was responsible, or were due to some event or some conditions for which he was not required to answer.”
To the same effect is Black’s Law and Practice in Accident Cases, § 21. The liability of the appellants growing out of the wrong communication of, or erroneous acting upon, signals under such conditions as this evidence tends to prove, we think has been fully established by former decisions of this court. Westerlund v. Rothschild, 53 Wash. 626, 102 Pac. 765.
It is contended that Cole was guilty of contributory negligence in going upon the wall when he could have stationed himself and waited on the wall end of the easterly I beam where he wps to guide that end of the channel into place, or that he could have walked on the scaffold used by the masons on the inside of the wall a few feet lower down. In other words, it is-insisted that he chose an unsafe way when there were two other safe ways. We cannot so decide, as a matter of law, in this case. The going upon the wall was clearly not an unusual thing, nor, of itself, regarded as particularly dangerous by these men in this class of work; and there was no evidence indicating that the appearance of the wall indicated its unsafe condition. It is true Cole was not directly ordered to go there; but he evidently went there because he deemed it his duty to assist in drifting the channel over to its proper position while being lowered, rather than to wait at the wall end of the easterly I beam for the others to drift the channel over to him to put into place. Even the foreman’s testimony does not indicate that he regarded this act of Cole’s as unusual or particularly dangerous or out of the line of his duty, except for the fact that the wall was not yet set, thus furnishing an insecure footing; It is plain that Cole, from his position on the easterly I beam, could not reach the channel as sus
We are of the opinion that neither the question of appellants’ negligence, or Cole’s contributory negligence in choosing an unsafe way when other safe ways were open, could be decided as matters of law, but were properly left to the jury.
We are not able to say that other assigned errors were prejudicial to appellants’ rights, since we are not cited to pages of the record enabling us to properly discuss them, besides they are submitted to us practically without argument.
The judgment is affirmed.
Dunbar, C. J., and Fullerton, J., concur.
Dissenting Opinion
(dissenting) — It seems clear to me that the death of the deceased was due to his own negligence. Two safe ways were open to him. He could have performed his work in safety from either the I beam or the scaffold inside the wall. The channel was lowered by machinery. It could be done in no other way. The deceased merely assisted in “drifting” and adjusting it to place. I therefore dissent.
Mount, J., concurs with Gose, J.
