58 Wash. 666 | Wash. | 1910
The plaintiff brought this action to recover damages for personal injuries sustained while in the service of the defendant. At the close of his testimony the court, upon the motion of the defendant, dismissed the case. Plaintiff has appealed.
The respondent was engaged in cement and brick work upon the public streets of Seattle. The basis of the appellant’s claim for relief is that, at the time of the happening of the accident, he was working for the respondent as a common laborer ; that he had been so employed for something over a day; that while engaged in wheeling sand, he was called by the respondent’s foreman to assist in unloading three barrels of tar from a dump wagon; that two of the
The governing principles of law are well settled in this class of cases, but the difficulty lies in their proper application. The master commands and the servant obeys, and he has a right to rely upon the superior knowledge of the master and to act as directed, unless the danger in doing so is so open or apparent that a man of ordinary prudence would discern the danger and refuse obedience. If the appellant did not know the actual or approximate weight of the barrel, he did not assume the risk as a matter of law. His position, as
In International & G. N. R. Co. v. Figures, the plaintiff and another, at the instance of the master’s foreman, undertook to take up and load into a car a piece of iron twelve inches square, about six feet in length, and weighing 575 pounds. The iron fell, injuring the plaintiff. The plaintiff had handled scrap iron and steel rails, and was familiar with the work. The court correctly said that, if the plaintiff did not know, and by the use of ordinary care could not have discovered, the danger before taking hold of the iron, the danger in two men undertaking to lift and load it into the car became apparent when he undertook to raise it, and that there was no liability. In Brown v. Oregon Lumber Co., the right to recover was denied where the plaintiff was injured while loading ties in a car. The ties were piled nine or ten high.
These cases are readily distinguishable upon the facts. Where a party undertakes to raise a heavy body from the ground, he has notice of the weight before the danger period arrives. It is very different, however, where one undertakes to unload an object from a wagon or a car, and has no notice other than the appearance of the object, until the weight is upon him and the danger period at hand. In brief, in the one case he can desist when the danger becomes apparent, and in the other he cannot.
The judgment is reversed, with directions to grant a new trial.