61 Wash. 639 | Wash. | 1911
This is an action to recover damages for personal injuries. The negligence of the defendant and the injuries resulting to the plaintiff therefrom are alleged in his complaint as follows:
“That on the 16th day of September, 1909, and for some time prior thereto, the plaintiff was in the employ of the defendant and working upon the construction of said defendant’s railway in camp number 75, near bridge number 17, about one and one-half miles west of Falcon, Idaho, a small station on defendant’s railway; that said plaintiff was, at the said time, working as a laborer under the direction and supervision of said defendant, and that said defendant directed the said plaintiff to go and shovel away a quantity of loose dirt which had fallen down from the embankment above, and became lodged in front or at the opening of a ‘coyote hole,’ the latter being a hole which was made in the hillside, for the purpose of blasting loose dirt and rock to be removed in the construction of a roadbed for said defendants railroad, and that the defendant assured said plaintiff that the said place where said plaintiff was directed to work was safe, and particularly assured said plaintiff that there was no danger of rocks falling down from the embankment above at the place where said plaintiff was directed to work. That in pursuance to the said order and direction on the part of the said defendant, the said plaintiff, relying upon the statement and assurance of said defendant that the said place was safe, went to work to shovel dirt at the said place' as directed.
“That about 11 o’clock on the forenoon of said day, while said plaintiff was working for said defendant at the said place as directed, without any notice or knowledge of any danger whatsoever, and without any fault on the part of said plaintiff, a large rock rolled down over the edge of the embankment about fifty feet above where the plaintiff was at work,*641 and came down with great force and velocity and struck plaintiff’s right arm about four or five inches above the wrist, then and there and thereby breaking the bone known as the ulna in the said plaintiff’s right arm and caused what is commonly known and termed as compound fracture of the said bone, and injured the skin, nerves, tendons, muscles and ligaments of the said plaintiff’s right arm, and then and there and thereby the said plaintiff’s right arm, was seriously and permanently inj ured and disabled.
“That at all times herein mentioned it was the duty of said defendant to furnish to said plaintiff a safe place to work, and particularly to see that there were no loose rocks in or on the embankment above, which could fall down upon the plaintiff at the said place of work, and that said defendant carelessly and negligently failed to make the said place safe, and failed to remove from the said embankment loose rocks, and failed to warn and notify said plaintiff of said danger, but assured said plaintiff that said place had been made and was safe and then violated its duty to plaintiff, and that by reason of said negligence on the part of said defendant, the injuries set forth were inflicted upon said plaintiff without any fault on his part.”
The defendant demurred to the complaint upon the sole ground that it does not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court and the defendant answered, denying the acts of negligence charged against it; and as affirmative defense, alleged that, in the performance of his work at the time of his injury, the plaintiff was not a servant of the defendant, but was an independent contractor; that he assumed the risk of being injured in the manner alleged; and that his injuries were the result of his own negligence. Upon these issues, the cause proceeded to trial. At the conclusion of the plaintiff’s evidence, counsel for the defendant challenged the sufficiency of the evidence to warrant the submission of the cause to the jury, which was by the court overruled. At the conclusion of all of the evidence, counsel for the defendant renewed their challenge to the evidence, and moved the court to dis
The contentions of learned counsel for the respective parties have to do with these questions: (1) Was the evidence-bearing upon respondent’s negligence and appellant’s assumption of risk such as to require the submission of these-questions to the jury? (2) Was respondent freed from liability for appellant’s injuries because he was performing his work as an independent contractor? We will now review the facts bearing upon these questions.
There was competent evidence tending to show the following : In September, 1909, respondent was engaged in removing a rock bluff incident to the construction of its railway. In the performance of this work, small tunnels, called “coyote-holes”, were run into the face of the bluff some twenty feet or more at a level of about two hundred feet above the foot of the bluff, in which tunnels large quantities of powder would' be exploded, breaking and loosening the rock over the tunnels so that is could be removed by a steam shovel and a small construction train. At the time in question, a ledge had' been made along the bluff where the tunnels were being-driven, some twenty feet or more wide, on which the train could run upon a temporary track. From this ledge, at the-point where appellant was injured, the rock wall of the bluff' raised almost perpendicular about thirty-five feet, and then sloped back precipitously until it attained' a height of a hundred feet or more. It was composed of rock, seamed horizontally from eight inches to three feet apart, which dipped into-the hill. The tunnels were driven in on a level with the ledge, and were on an average of about forty feet apart. The upper-part of the bluff was covered with about a foot of earth, except in some few places the rock came to the surface. This-extended down to within about sixty feet of the ledge, probably down to where the earth and surface rock had been removed in making the ledge. A person standing on the ledge
“Q. State when if at any time you were hired by the defendant in this case, the Chicago & Milwaukee Railway Company, to work for them. A. Why I was hired at the east-portal by an assistant engineer by the name of Horrocks, and he gives me a slip of paper to take over to his foreman by-the name of Dan McKinnon, and get the orders from him what to do. We were hired to go over there and do rock work, to-get orders from him to work, or what to do. Q. Did the-defendant hire anyone else besides you at this time to go to this place to work? A. There was three of us hired, I and' Anderson and Hans Christopherson. The three of us was hired to go to this place and do rock work. Q. Now where-is this east portal that you were_ hired at ? A. I couldn’t say exactly how many miles to it. It is in the neighborhood' —or at least I was told by Mr. Horrocks there that it should be seven or eight miles. It is about seven miles, I think, as far as I can remember. Q. From the camp where you were-to work? A. From east portal to this camp where I went to work. I don’t remember that particular or exactly, but my recollection is that Horrocks told me I could make it by-walking over there in seven miles, he says. Q. Did you walk over? A. No, sir, we took the train in the evening and went over. Q. What was your agreement as to wages with-Mr. Horrocks? A. Well, we were told that we should get three dollars seventy-five a foot for digging this coyote hole, and any other day work that was mentioned how much we-should get a day for that.”
On cross-examination he testified:
“Q. Now, tell us what you first said to Mr. Horrocks when-you met him. A. I asked him if he had any work to let out,, or any work to give to anybody; we were looking for work. He says he had some coyote hole digging over there, he said;.*644 and he says, contract work or day work. He says, ‘You can get it on contract’, he says. And I asked him how much he was paying. He says, ‘Three dollars seventy-five a foot. So if you want to go over there and look at it,’ he says, ‘you can go over and take that one particular hole,’ he says, ‘if it suits you. If it don’t, see the foreman and you will get something else.’ ”
This testimony tends to show the authority of the foreman McKinnon, as well as the contractual relation of the parties, though we will probably find as we proceed that the exact nature of the latter is of little consequence. Appellant and his associates went with the note to McKinnon, the foreman in immediate charge of the work. McKinnon showed them the hole, which was then driven in about eighteen feet, and they went to work and drove it in about four feet farther during the next few days, the material therefrom being carried out across the ledge, where it was dumped over the outer edge by a wheelbarrow.
On Tuesday evening, September I4th, about six or seven o’clock, charges of dynamite which had been prepared in two tunnels, the first and second ones west of the one appellant and his associates were working at, were exploded. This blast was not one merely for the purpose of extending those tunnels, but was a heavy blast put in upon their completion, and was for the purpose of loosening the face of the bluff for the steam shovel. The effect of this blast was to break the rock wall above the ledge for some distance over towards the tunnel appellant and his associates were wox’king at. This shattered zone widened as it went higher up the bluff, where it extended out to within a few feet of, if not over, the tunnel appellant was working at. This blast also jarred down a quantity of rock immediately in front of the opening to appellant’s tunnel, blocking its entrance. The foreman, upon having his attention called to this material in front of the tunnel and its preventing work in the tunnel, told them to clear it away and that they would get paid by the day for that work. They thereupon proceeded with that work during
The next morning, September 16, appellant and his associates returned and looked at the face of the wall so far as they could .see it from the ledge. Whether or not they went to work before McKinnon came is not very clear, but in any event he very soon. came there and told them that the place was now safe, and for them to go ahead and clear it out, referring to the loose rock in front of the tunnel. They then proceeded with their work, two of them removing the debris from in front of the tunnel, and one working at drilling in the tunnel. Nothing further occurred indicating danger until about eleven o’clock in the forenoon, when a quantity of rock fell from the wall or slope above, one of the pieces striking appellant and inflicting the injuries for which he seeks damages by this action. There was no appreciable shock or physical disturbance of any kind occurring at the time in the neighborhood. The rock evidently fell only because of its loose condition. The proper manner of barring
“Q. Now was the rock on this wall of such character that it could be barred down, as you have described here? A. Yes, sir; it could be barred down, so it would'be as safe as this room right here is.”
Appellant and his associates did not inspect the wall on the morning of the injury other than by looking at it from the ledge, where they could not see all of it. They evidently depended upon the assurance of McKinnon as to its safety. The mere fact that McKinnon had apparently completed the barring down was some assurance to that effect, and this was-strengthened in their minds by his conversation with them that morning.
Let us first inquire what was the duty of respondent towards appellant and his associates as to the rendering the wall and slope safe from falling stone. We have noticed that appellant’s foreman, McKinnon, was advised of the danger from falling stone on the day preceding the injury; that he then told appellant that he would send men up and make it safe; that he did send men up who, under his supervision, went over at least a portion of the wall barring down loose rock; that this work was apparently completed that afternoon ; and that when appellant and his associates went there to work the following morning they were then told by the foreman, in substance, that the wall and slope were safe, and to go ahead and clear away the debris from in front of their tunnel.
In the light of these facts it seems clear to us that respondent then owed to appellant and his associates the duty of making the wall safe, in so far as it could be rendered safe by inspection and barring down of loose rock, and that appel
For the purpose of determining whether or not respondent’s evidence, as a matter of law, conclusively disproved its negligence, inferable from the facts we have noticed, we must regard the burden of such proof as resting upon respondent. We have seen that the only evidence tending to show due •care in the inspection of the wall and the barring down of the loose rock was the testimony of the foreman McKinnon. He testified as to the manner in which the men under him tested and barred down the loose rock, tending to show that it was carefully done. Also that the men, as well as himself, were experienced in that kind of work, and that he looked over the work after its completion and found the place safe. He was, of course, by reason of his relation to respondent and his connection with the work, an interested witness. This brings us to the question, Was the learned trial court warranted upon this evidence alone in deciding, as a matter of law, that respondent had exercised such care in making the place safe as to relieve it from liability for the injury to appellant? When the burden of proving some disputed fact in a jury ■case rests upon a party, and such fact is sought to be proven
“The learned General Term, in its opinion, admits, this proposition, and concedes that the fall of the plate or clip, in the absence of an explanation, raises a presumption of negligence. That court, however, reached the conclusion that the presumption was overthrown by the evidence produced on behalf of the defendant. As we have seen, that evidence was given by the witness Roach. It was his duty, as he testified, to examine carefully all rails, switches, signals, bolts and fastenings of all kinds, and to keep them tight. He further states that in June, 1885, he was engaged in following out his instructions and performed them to the best of his ability. In no place does he testify that he ever examined the bolt and clip which fell upon the plaintiff. He does not tell us how often he passed over the track, or to what extent he examined the bolts and fastenings. He only gives us his own conclusion that he performed his duty to the best of his ability. It does not appear to us that this was sufficient to remove the presumption which necessarily follows from the established fact that the bolt was broken, and in that particular the structure was out of repair and dangerous.
“But even if this evidence was sufficient to remove the presumption as held by the General Term, the credibility of the*649 witness would still be involved and be a question for the jury. This witness was the defendant’s track walker. It was his duty to examine the bolt which was broken. If there was any negligence for which the defendant was chargeable, it was that of this witness. He was, therefore, a person interested, and possibly actuated by a motive to shield himself from blame.”
It is true that decision had reference to an artificial structure maintained by the company; but in view of the evidence in this case tending to show the relation of appellant to respondent, the promise of its foreman to make the place safe, his assurance thereafter that it had been made safe, and respondent’s ability to make it safe, we are not able to see that respondent’s duty to appellant and his associates was in principle any different than it would have been had the wall been an artificial structure maintained by respondent. We are of the opinion that the testimony of McKinnon was not conclusive evidence enabling the court to decide, as a matter of law, that respondent was not negligent in failing to make the place safe. The following authorities are in harmony with this view. Ireland v. Scharpenberg, 54 Wash. 558, 103 Pac. 801; Fireman’s Fund Ins. Co. v. Oregon R. & Nav. Co., 58 Wash. 332, 108 Pac. 770; Kennedy v. McAllister, 52 N. Y. Supp. 714; Kavanagh v. Wilson, 70 N. Y. 177; Babcock v. Chicago & N. W. R. Co., 62 Iowa 593, 13 N. W. 740, 17 N. W. 909; Atchison & N. R. Co. v. Bailey, 11 Neb. 332, 9 N. W. 50; Cunningham v. Union Pac. R. Co., 4 Utah 206, 7 Pac. 795; Felton v. Bullard, 94 Fed. 781.
A considerable portion of the argument of learned counsel for respondent is devoted to their contention that appellant was performing his work as an independent contractor at the time he was injured, and for that reason respondent owed him no duty to make the place safe. We deem it unnecessary to determine whether the technical legal relation between them was that of owner and independent contractor or master and servant.. There may be room for argument that either of
It is contended that appellant’s complaint does not state a cause of action. This contention of course would in no event call for an affirmance of the court’s decision upon the challenge to the evidence, though it might call for a reversal of the overruling of the demurrer and permit an amendment of the complaint. It is insisted that, “Two matters are noticeably missing from this complaint; first, all allegation that the respondent knew, or in the exercise of reasonable care, could have known, of the danger; and, second, that the appellant was ignorant of the danger.” Under the liberal rules of pleading adopted in this state we think these facts are to be inferred from the facts alleged in the complaint, though they' are not specifically stated therein. We are of the opinion that the facts pleaded constitute a cause of action.
Some effort is made to liken this case to that of White v. Spokane & Inland Empire R. Co., 54 Wash. 670, 103 Pac. 1119. We think, however, the cases are distinguishable. In that case the company was, as a matter of law, relieved from the duty of inspection because the undisputed facts showed that there was no apparent danger calling for inspection, and had not been for a month or more previous. In this case the danger was admittedly present only a few hours before the injury and was known to respondent. The question here was not as to the necessity of inspection and removal of the dan
The judgment is reversed, with instructions to grant appellant a new trial.
Rudkin, Mount, Fullerton, and Gose, JJ., concur.