83 Wash. 68 | Wash. | 1914
Defendant had a contract to supply the government with rock for the jetty at Grays Harbor. The rock was transported on cars from the inland to a trestle or spur running into the Chehalis river. From these cars, it was loaded on scows, made fast alongside of the trestle. The manner of unloading was to put the rock into a wooden skip which was about twelve feet long and five feet wide. The skip, when being filled, was made to rest on a parallel track. It was raised by means of a derrick, the boom of which swung in a circle. When the skip had been filled, it was raised, carried over the car and returned to the scow. When empty, it was raised, carried over the car and held until the head
Plaintiffs’ decedent went to the place where the work was being carried on, and asked the foreman in charge for employment. There being no place for him, he remained for some little time talking with the employees. At the time of the accident, to be presently mentioned, he was standing on the trestle on the off side of the car that was being unloaded. The engineer, on signal, raised the skip from the scow, swung it over the car, and in obedience to a like signal from one of the employees on the car, lowered it. It struck Kroeger on the forehead, knocked him down with such force that he was rendered unconscious and so wounded him that he afterwards died.
Plaintiffs brought this action, alleging that the defendant was guilty of negligence in the operation of the skip, and further, that while decedent was standing in a place of apparent safety and in ignorance of any danger, the defendant, knowing of his presence, carelessly, negligently, wantonly and wilfully permitted the skip to be suddenly dropped from its elevated position. It appeared that Kroeger had finished his errand and had no business or employment in or about the work at the time the accident occurred. He was waiting to go with some of the crew who were to go off shift in a few minutes.
At the close of plaintiffs’ case, defendant moved for a non-suit, which was granted by the court, for the reasons that it did not appear that the defendant was guilty of negligence and that decedent Kroeger was guilty of negligence on his part.
We think the judgment of the lower court was clearly right. Defendant owed Kroeger no duty other than to refrain from wilfully and wantonly injuring him. The occurrence was a pure accident. It is shown that Kroeger was
To allow a recovery in this case would be to put upon a defendant similarly situated the duty of maintaining an extraordinary degree of care, whereas, the rule is that a defendant owes no duty of actual care, while a duty of vigilance or the highest degree of care is put upon one who, for his own purposes, goes upon the premises of another and puts himself in a place of danger. 2 Cooley, Torts (3d ed.), p. 1268; 1 Thompson, Negligence, 946-948; 8 Thompson, Negligence (White’s Supp.) 946.
The distinction between a trespasser and a licensee is clearly drawn in McConkey v. Oregon R. & Nav. Co., 35 Wash. 55, 76 Pac. 526. Within the rule of that case, Kroeger was
“He went there on his own business, and in returning he was subserving his own purposes only. The precise question*72 is whether a person who goes upon the land of another without invitation to secure employment from the owner of the land, is entitled to indemnity from such owner for an injury happening from the operation of a defective machine on the premises not obviously dangerous, which he passes in the course of his journey if he can show that the owner might have ascertained the defect by the exercise of reasonable care. We know of no case which goes to this extent. There is no negligence in a legal sense which can give a right of action, unless there is a violation of a legal duty to exercise care. The duty may exist as to some persons, and not as to others, depending upon peculiar relations and circumstances.”
Paraphrasing the words of the court in McConhey v. Oregon R. & Nav. Co., supra, Kroeger, by the exercise of common judgment, should have known that to occupy the place he did would be attended by great hazard. He knew that he ,was not upon a highway for pedestrians but that the trestle was built and maintained and was being used for railway purposes. While he may have believed it was in such condition as would enable him to occupy it with safety, yet the environment, time, and his relation to the defendant were such as to give him no right to act upon such belief or to rely upon any duty owing by the defendant to maintain the place in safety for him.
We agree with the observation of the deceased, who said, upon recovering consciousness, that the accident occurred in consequence of his own fault.
The judgment is affirmed.
Crow, C. J., Gose, Morris, and Parker, JJ., concur.