76 Wash. 82 | Wash. | 1913
The respondents recovered a judgment against the appellants for personal'injuries received by the respondent August Greinert while in the employment of the appellant Lamont Investment Company.
The Lamont Investment Company is a public service corporation engaged in supplying the town of Lamont with water. The appellant Dan Morgan is its president. The corporation, to procure a supply of water, drilled a well near the town of Lamont, and sought to case it by driving casing into the drilled hole. A piece of the casing thus driven split in some manner and became fastened in the well, so that it was found impossible to remove it by pulling it out. It thus became necessary to dig ai'ound the casing down to the split in order that the breach caused thereby could be repaired. The split occurred in solid rock beneath some 43 feet of earth. The appellant employed one Bollinger to excavate through the earth to the solid rock. A chamber, 17 feet square and 10 feet deep, was first dug and lined with cement. Beneath this chamber a pump shaft, 7 feet square and 14 feet deep, was then dug and cemented in like manner. Then from the bottom of this shaft a circular well, 4 feet in diameter, surrounding the casing as a center, was dug down to the solid rock, a distance of 19 feet. The well was in this condition when the respondent August Greinert was employed to complete the excavation necessary to repair the casing. Mr. Bollinger, for his own purposes, had constructed an ordinary windlass which he placed across the top of the well. To this he fastened one end of an inch rope which had on the other end a No. 8 iron grab hook. In hoisting excavated material from the well, Bollinger used an ordinary bucket having a bail, which he attached to the rope by hanging the bail onto the hook. When
The contract of hire between the parties to this action was made by the appellant Morgan and the respondent August Greinert. The contract was made in Spokane, which is some 40 miles from the place of the work. The respondent testifies that Morgan told him to take a helper with him skilled in rock work and go to the place of the work and complete the necessary excavation; that he would find Morgan’s son at the well who would get him “anything he needed” to enable him to perform the work. He testifies further that while he “understood perfectly powder and drilling,” that he did not understand well-digging; that his work theretofore in that line had been performed in trenches and manholes not more than 8 or 9 feet deep, and that he so informed Morgan, and was assured by him that there was no particular danger in this work.
On arriving at the well with his helper, the respondent found' Bollinger and Morgan’s son there. The windlass and its accessories were also in place, and these were adopted by the respondent as sufficient for his own purposes. Bollinger and the son of the appellant Morgan showed the respondent how they had used the appliances, Bollinger making the loop in the rope as he was accustomed to make it, for the respondent’s instruction. Both Bollinger and the respondent descended into the well, when the respondent looked it over with a view of ascertaining whether it would stand the explosion of the blasts necessary to remove the rock. Satisfying him
It seems to us that there was here no ground for a recovery, and that the court should have sustained the challenge of the appellants to the sufficiency of the evidence. Conceding all that the respondent claims, namely, that the device was one furnished him for use by the appellants for the safety of which they were responsible, and that the instructions given him as to the manner of its use by Bollinger and
But we think the particular device that caused the injury does not fall within the rule of safe instrumentalities. There was nothing magical about the manner in which the loop in the rope was formed. The loop itself was the thing desired, and its formation in some other manner than the particular way directed would have answered the required purposes equally well. Every one knows that such a loop could have been safely formed by any one of a number of simple knots, and when the respondent found that the loop in use refused to hold, the exercise of ordinary care on his part required that he form the loop in a more secure way. Had his employers been present they could have had no more knowledge of the conditions than he himself possessed, and surely they are not liable to him because they failed to be present, or have some one present, to tell him what he not only actually knew but
“The rule seems well established that an implement of simple structure, presenting no complicated question of power, motion or construction, and intelligible in all of its parts to the dullest intellect, does not come within the rule of safe instrumentalities, for there is no reason known to the law why a person handling such instrument and brought in daily contact with it should not be chargeable equally with the master with a knowledge of its defects. Cahill v. Hilton, 106 N. Y. 512, 13 N. E. 339; Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56; McMillan v. Minetto Shade Cloth Co., 117 N. Y. Supp. 1081; Wachsmuth v. Shaw Elec. Crane Co., 118 Mich. 275, 76 N. W. 497; O’Brien v. Missouri, K. & T. R. Co., 36 Tex. Civ. App. 528, 82 S. W. 319; Holt v. Chicago, M. & St. P. R. Co., 94 Wis. 596, 69 N. W. 352; Stirling Coal & Coke Co. v. Fork, 141 Ky. 40, 131 S. W. 1030; Jenney Elec. L. & P. Co. v. Murphy, 115 Ind. 566, 18 N. E. 30.” Cole v. Spokane Gas and Fuel Co., 66 Wash. 393, 119 Pac. 831.
Again, we think, under the respondents’ statement of the contract of hire, the respondent was himself to select the necessary instrumentalities with which to perform the work. He testified that the appellant Morgan told him he would find his [Morgan’s] son at the place of work, who would get him “anything he needed” with which to perform the work. If, therefore, the respondent chose to adopt the device he found at the well instead of putting in his own, they became his own devices and not those of the appellants.
Some question is made concerning a new bucket which the respondent desired and which was not furnished on the day the same was requested. But the failure to furnish the bucket had nothing to do with the respondent’s injury. He fell from the rope after the bucket had been removed therefrom, not from the bucket itself. Negligence to be actionable must be the proximate cause of the injury, and the failure to get a new bucket was not the proximate cause of the injury in this instance.
Crow, C. J., Main, Ellis, and Morris, JJ., concur.