9 Wash. 696 | Wash. | 1893
The opinion of the court was delivered by
— On the 20th day of June, 1890, appellants, while in the prosecution of grading work in the city of Spokane Falls, set off a rock blast which caused the death of Louis W. Graetz, husband of one of the respondents and father of the other. This was an action for damages
The tracks of the Union Pacific railroad, running east and west, cross Washington street at right angles a few hundred feet north of the Spokane river, and in the space between the railroad and the river, east of the street, appellants were removing a ledge of rocks to prepare the ground for business purposes. South of the railroad and west of the street, and exactly at their intersection, was a one-story wooden freight house, some forty feet in width, and seventy or eighty feet long. The floor of this house was raised a few feet from the ground, after the manner of such buildings, and on the north and south sides and at the west end there was a five- or six-foot platform, which was overhung by a projecting roof. The east end of the house was flush with the street without platform or eaves. Steps led up to the platform at the northeast corner of the house; and in the east end Avas the office, a room about sixteen feet square. There Avas a door from the platform into the office, a few feet from the northeast corner, and there were two windows opening into the office in the east end of the building.
This work had been going on for several months, and on the day above mentioned a blast was made ready to be fired at noon, at a point about one hundred and fifty feet southeast of the northeast corner of the freight house. A few minutes before the blast was expected to occur, the foreman of the rock work, one Grannon, went to the freight office, gave warning of the explosion to the railroad employes, and stood on the platform at the corner of the building to watch it. The employes, several in number, left the office and took positions on the platform, under the projecting eaves, along the north side of the building.
The explosion was more severe and destructive than any that had previously occurred in connection with that work. Cars upon the railroad tracks had their sides crushed in, and the freight house walls were more or less damaged; but no stones except those which went through the windows entered the building. Obviously, the safest place within the range of the flying fragments was on the north platform of the freight house, since two walls, each oblique to the direction from which the pieces must come, protected anyone standing there; and, as obviously, a position in front of one of the windows was no safer than the open street. Nobody but the deceased was injured, though another man who was also a stranger there followed him into the office. When the building began to be struck the others ran farther west along the platform.
Appellants were pursuing a lawful work, which, for the six or seven months during which they had carried it on, had caused injury to no one. But by carrying it on in such a way as necessarily to throw rocks over upon the street and adjacent property,, as was the case at every blast, they maintained a nuisance and were liable for such damage as they might do. In this respect this case differed from Klepsch v. Donald, 4 Wash. 436 (30 Pac. 991), and was, in principle, like Wright v. Compton, 53 Ind. 337;
Under the motion for a non-suit made in the court below, the question of warning became the vital one in the case, and the only theory upon which the motion could have been denied must have been that it was a question for the jury, whether the warning given was not so shortly before the explosion that deceased had no time for reasonable action.
We say this was the only theory, because, to a man of the most ordinary intelligence, the mere suggestion of a rock blast right ahead would lead to his taking such measures as lay in his power to insure his safety; and deceased, in the language of the complaint, ‘ ‘ was a strong, healthy, sober man, twenty-four years of age, a skilled and expert bricklayer and competent carpenter and joiner;’ ’ conditions not attainable without intelligence. The evidence on this point for the respondents consisted of the testimony of three eye witnesses.
A. W. Curtis was a clerk in the freight office. After Gannon had given the warning, this witness went to the south door of the freight house, where he assisted a lady and some children to get into the house, and then walked across to the north platform at a point about fifty feet west of the office door, and almost immediately the blast went off. He placed the warning at a minute or a minute and a half before the explosion, and testified that deceased had just reached the platform at the moment of the explosion, and that he rushed right into the office. Heard nothing said to deceased by anyone. He did not quicken his pace at all until he got on the platform; after that he seemed to do so.
John Williamson came from his home on his way to the Review building. Saw Gannon and two other men standing at the corner of the building on the platform. Gannon told him a blast was going off'.and to look out or stand back. Went up on the platform and stood there with Gannon, deceased and a railroad official. Stood right alongside of deceased for four or five minutes until the blast went off. Heard a remark passed that it was rather long going off. As soon as the rocks began to come deceased ran into the office and witness as close behind him as he could get. Deceased was standing on the platform when witness came up. Stood at a point four or five feet from the east end of the freight depot. Deceased was within two or three feet of the window when struck and right opposite to it.
None of these witnesses were present at the trial, their testimony being presented by depositions taken at times several weeks apart. Neither the jury nor the trial court were, therefore, in any better position to judge of this testimony than ourselves; and we think it must be accepted that Curtis was mistaken in his statement.
The only disagreement between Webb and Williamson is, that the former makes deceased the second man to reach
There was a small triangle at the east end of the platform, which the building did not shelter from stones hurled upon it in a direct line; but the rest of it was as safe as the walls of the building were strong. Webb and Curtis were both called out of the office and to the platform for the purpose of getting them out of danger. Webb reports Gannon as advising that they go back along the platform; Williamson that he told him, in the hearing of deceased, to stand back. They did not stand back, but argued rightly that they were safe enough where they were, close to the wall and several feet from the corner. Gannon was nearer the corner than they were.
Now, unless appellants are responsible for the impulse or
There is a line of cases which hold that where one precipitates a danger suddenly upon another, the liability for damages is not avoided, although the person threatened himself cause his injury by an ill-judged attempt to escape, when if he had remained quiet the injury would not have occurred. But no such case is reported where timely warning of the peril had been given and the person warned, after taking up a position of safety, had abandoned it and sought some other, in doing which the casualty happened.
Respondents were responsible for the testimony of witnesses Webb and Williamson, and for the credibility of each, and their depositions furnished a clear preponderance of the evidence that it was four or five minutes after deceased went upon the platform before the blast went off, and that it was his own voluntary act which caused him to go into the office, abandoning his safe position on the platform. The jury were not at liberty to disregard the evidence and find but a momentary warning upon the testimony of Curtis, and the court was bound to take notice of the state of the evidence which would require the granting of
There must be a reversal of the judgment, and remanding of the cause with directions to sustain the motion for a non-suit.
So ordered.
Hoyt and Anders, JJ., concur.
Dunbar, C. J., and Scott, J., dissent.