68 Wash. 401 | Wash. | 1912
Action to recover damages for personal injuries suffered by the plaintiff while in the employ of the defendants. In October, 1907, and for some time prior thereto, the plaintiff was in the employ of the defendants in their boiler works in the city of Seattle. The defendants, through their general foreman, one Bean, on the day before the accident, sent the plaintiff and two other men to put up on the top of a building, some six or seven stories high, known as the Perry Hotel, in the city of Seattle, a ventilating stack. The stack was made of heavy sheet iron, and in sections which had to be hoisted from the ground to the top of the building, and the sections there put together to form the completed stack.
Of the three men, one, Peter Wezrek, was a boiler maker, the plaintiff and the other man being employed in the capacity of boiler maker’s helpers. The evidence tended to show that the man Wezrek took the lead, and to the extent found necessary directed the others in the work. It was necessary at the start to erect upon the roof of the building a derrick or hoist for the purpose of raising the sections from the
On the day of the accident, when the three men endeavored to hoist a section of the stack by pulling upon the rope, they found the section too heavy for their strength, and telephoned to the shop for more men. These were sent from the shop, and as one of them testified, reported to Wezrek. Certain painters at work on the hotel also assisted, and at the time of the accident the witnesses estimate the number of men pulling on the rope at from seven to ten. The pressure on the wall as the heavy section cleared the ground caused the wall to give way beneath the pole, and some of the bricks fell to the ground, one of them striking the plaintiff upon the head, inflicting the injury complained of.
The accident occurred on October 22, 1907. On November 15 the defendants paid the plaintiff the sum of $152.50 and obtained his signature to a written release. The evi
The appellants first contend that the respondent was not entitled to recover because he settled with the appellants and executed a full release of his claim. It is admitted that the respondent signed the release, but he contends that he was in a dazed condition at the time and had no realizing sense of what he was doing. The appellant Jenkins testified that, in response to a telephone message from the respondent’s house, some days after the injury, he called there and discussed the matter of settlement with the respondent, his wife and her mother; that the wife suggested the basis of settlement as finally made, and that the respondent concurred in it; that at the time he appeared to be entirely rational and in a normal condition mentally. The wife testified that the question of a release was never suggested, but that the conversation was confined to a payment of wages until the respondent could return to work and the expenses attendant
On the other hand, the respondent testified that he had no knowledge of the visit either of Jenkins or of the attorney and no memory of signing the release. His wife testified that she did not know the paper was a release when she witnessed it, but that the attorney informed her that it was merely a receipt for expenses and wages and that it was not necessary for her to read it. The evidence we think establishes beyond doubt that the respondent’s skull was fractured by the impact of the brick causing a dent in the skull and pressure upon the brain, and that his mentality has been, to some extent, impaired ever since. The evidence shows that, on the night immediately preceding the settlement, and when the child was born, he was in a highly excited and nervous condition, walking the floor and complaining of intense pain in the head and unable to sleep until an opiate was administered to him; that but a few days before this he had gone down town to consult a physician, and on attempting to return home became dazed and did not know which car to take; that his wife going in search of him found him wandering the streets looking at the lights and in a dazed and incoherent state; that at all times after the injury prior to the settlement and even up to the time of trial, he was extremely nervous and irritable, suffering with almost continual pain in the head, and at times dropping into unconsciousness and stupor.
It is manifest that, if the evidence of the respondent’s wit
“When the inadequacy of consideration is very gross, fraud will be presumed, for though in such a case there may be no positive evidence, yet, when the inequality is so great as to shock the conscience, the mind cannot resist the inference that the bargain must in some way have been improperly obtained.” 6 Am. & Eng. Ency. Law (2d ed.), p. 701.
See, also, Butler v. Haskell, 4 Des. (S. C.), 651; Burch v. Smith, 15 Tex. 219, 65 Am. Dec. 154; Sanford v. Royal Ins. Co., 11 Wash. 653, 40 Pac. 609.
The question as to whether the release was understandingly signed by the respondent was one for the jury upon the evidence, and was submitted under proper instructions. In this we find no error. Pattison v. Seattle, Renton etc. R. Co., 55 Wash. 625, 104 Pac. 825; Westby v. Washington Brick, Lime & Mfg. Co., 40 Wash. 289, 82 Pac. 271.
It is next contended that, if there was any negligence, it was that of respondent’s fellow servant for which the master would not be liable. The work was plainly of a character which required supervision. It was the duty of the master to use reasonable care to provide reasonably safe facilities for the work. The respondent and three other men who assisted in the work all testified that the boiler maker Wezrek was foreman of the gang sent by the general foreman, Bean, to do the work and that they acted under his orders and direction. The fact that Wezrek regarded himself as having been placed in charge and as responsible for the work is
“Q. Mr. Wezrek, did you or did you not arrange that tackle? A. Why, yes, I arranged part of it. Q. You put it in place did you yourself? A. Well, yes, with the help I had.”
And again,
“A. Why, he was there part of the time. I don’t know whether he helped me — I know he was there at the last, I know he helped me put ropes on; that is all I can remember. I don’t remember, that is, to know whether he was there all the time or not. Three of us was sent up there to do the job. Q. Who sent you up there, Bean? A. Mr. Bean sent me up there. Q. Bean was your foreman? A. Was my foreman, yes. Q. And he sent all three of you out there to do the work? A. Yes. Q. And you all agreed upon the manner in which that work should be done? A. Yes. Q. There was nobody particularly in charge of that work out there, was there? A. Why, I was head man, I was the boilermaker ; they were the helpers; of course I didn’t get full charge of it or anything like that, I had to do as the foreman told me. Q. You had to do as the foreman told you? A. Yes. He told me to go out there and put it up, that is all. Q. He told you three men to go out and put it up? A. Yes, sir. Q. So you were not made boss or foreman of this crowd, or anything like that? A. No, I was not made boss. They didn’t tell me to take charge or anything of that kind; they told me to do the job, you know.”
And yet again,
“Q. And you all three talked about the manner in which you should do the work? A. I just went up there and decided that it would be a good scheme, is all, and put her right up. Q. And it looked safe and sound to you? A. Yes, it did. If it didn’t I would not put it up, I don’t think. Q. You didn’t see any danger with that way of putting it up? A. No. If I had I would not have put it up.”
While it is true that in response to leading questions he assented to the statement that he was not made boss, he says of his own accord “they told me to do the job you know.”
Nor do we find any merit in the contention that the respondent assumed the risk. If Wezrek was entrusted with superintendence of the work, then the respondent had the right to assume, without going upon the roof to inspect it, that the appliance was safely constructed. Dumas v. Walville Lum. Co., 64 Wash. 381, 116 Pac. 1091.
The judgment is affirmed.
Dunbar, C. J., Mount, and Fullerton, JJ., concur.