64 Wash. 395 | Wash. | 1911
This is an action to recover damages for personal injuries which the plaintiff claims resulted to him from the negligence of the defendant in 'causing a premature explosion of dynamite while doing excavation work upon its line of railway near the Cascade tunnel. A trial before the court and a jury resulted in a verdict and judgment in favor of the plaintiff. The defendant has appealed, contending that the trial court erred in denying its motions for non-suit, for an instructed verdict, and for judgment notwithstanding the verdict. Appellant also made a motion for a new trial, but its attorneys have in their brief expressly abandoned that motion, and say that “we do not care for a
There was competent evidence introduced in behalf of respondent sufficient to warrant the jury in believing the following: On October 19, 1907, appellant was engaged in improving its railway near the Cascade tunnel. In connection with this improvement, excavations were being made requiring a considerable amount of blasting with dynamite. This blasting was in the immediate charge and control of one Corea, who had the handling of the dynamite, prepared the blasts by loading dynamite into holes drilled into the rock for that purpose, and exploded the charges. He was the only man there doing that work. He was experienced in the work and had then been engaged in it for appellant for several months. This work occupied the larger part of his time. At other times he did whatever he was told to do by the foreman.
On October 19, 1907, at the time of the injuries occurring to the respondent, he had been employed for some time by appellant as water boy, a part of his duties being also to attend the brake on a small dump car used in the work. These were his only duties up to that time. He was then only nineteen years old and entirely without experience in the handling or use of dynamite. He only knew in a general way that it was dangerous, and had heard from the men that to cause the dynamite to come in sudden contact with a iron or steel instrument was dangerous as likely to cause an explosion.
A short time before the explosion causing respondent’s injuries, he was attending the brake on the dump car not far from where Corea was at work preparing to load a hole with dynamite. Respondent was then called by Corea to come and help him. Respondent refused to go, and, as he says, because that was not his work and he was afraid. After repeating the request three or four times, Corea spoke to the foreman about it, when the foreman told respondent to help Corea, and when respondent again protested against doing
The main contention of counsel for appellant is that Corea and respondent were fellow servants in this work, and hence that the negligence of Corea was not that of the appellant, his employer. It seems to us that this contention is not sound. It is true that it does not appear that Corea was the foreman in charge of the work as a whole, nor does it appear that he had any authority to employ or discharge men; but it does clearly appear that he had charge of this particular work, and that respondent was. under his direction and control in handling the dynamite and preparing the blast. Noth
Counsel for appellant call attention to, and rely upon, the following decisions from this court: Wilson v. Northern Pac. R. Co., 31 Wash. 67, 71 Pac. 713; Jock v. Columbia & Puget Sound R. Co., 53 Wash. 437, 102 Pac. 405; Desjardins v. St. Paul & Tacoma Lumber Co., 54 Wash. 278, 102 Pac. 1034; Magnuson v. Chicago, Milwaukee etc. R. Co., 58 Wash. 141, 107 Pac. 1043. But we think a reading of these decision's will show that in none of them was there any such authority and control on the part of the employee whose negligence caused the injury over the employee injured as is shown in this case. In the Desjardins case the negligent employee and the injured employee were both millwrights, and both 'skilled in the work in hand. It is true that the
Counsel for appellant contended, ■in substance, in their reply brief that it was the theory of counsel for respondent, and so understood by the trial court, in the trial of the cause, that Corea was a vice principal solely because the handling of the dynamite by him was a nondelegable duty, and that counsel for respondent did not rely upon Corea’s authority of superintendence and control as a ground of his vice principal-ship. It is now insisted that counsel for respondent should not be permitted to change their theory and rely upon the latter ground as well as the former. It is true that the trial court seems to have instructed the jury upon the theory first mentioned, and practically ignored the second. But it is not entirely clear from the record' that respondent has not at all times also relied upon both grounds to show Corea’s vice principalship. This matter might be of some concern here if we were only considering questions of error calling for a new trial. We have noticed that counsel for appellant have expressly waived all such errors and given us to understand that they did not want a new trial. Our concern here is to see whether or not the evidence as a whole warrants the conclusion that Corea was a vice principal. We think we are not called upon to confine respondent’s counsel to any particular theory claimed by appellant’s counsel to have been adopted upon the trial of the cause. Since the evidence supports the argument here made in respondent’s behalf, based upon the theory of superintendence and control to show Corea’s vice principalship, we do not feel warranted in ex-
The judgment is affirmed.
Dunbar, C. J., Fullerton, and Gose, JJ., concur.