74 Wash. 164 | Wash. | 1913
— This is an action to recover damages for personal injuries sustained by the plaintiff while employed by the defendant in the construction of a certain concrete wall of an addition to the Sheridan school, in the city of Tacoma. Plaintiff, when he was injured, on August 12, 1911, had been working for the defendant for a period of three weeks, but only three days of this time was spent in work at the Sheridan school. Prior to that time he was engaged in wheeling concrete for the construction of sidewalks. The concrete wall was ten inches thick, and at the time in question the form for its further construction had reached a height of about twelve feet, the concrete being conveyed from a mixer on the ground up a runway in wheelbarrows. This runway consisted of three 2x12 planks, placed side by side, forming an incline from the ground to a height of about eleven feet, where the runway became horizontal, its width remaining the same. It extended beyond and at right angles to the wall form into which the concrete was being poured, to a similar wall a number of feet distant from and parallel to the first.
Appellant’s first contention, if we correctly understand it,
It is next claimed that no causal connection was shown between the defect and the injury; the argument being that the collision of the wheelbarrow with the post was caused “by the joint action of the pushing and pulling forces exerted by the respondent and Thompson,” and that the proximate cause of the injury “was the manner in which the wheelbarrow was handled.” These forces, of course, had to be exerted whatever the width of the runway. The evidence tended to show that the wheelbarrow was run up the incline rapidly in order to make the grade, and that shortly after Thompson released his hold on the wheelbarrow, it.veered, to the right and struck, the post. The respondent testified to the effect that he was just starting to make .the turn, and that in so doing he struck the post because the place was too narrow to avoid it. Another witness testified that he would have to go pretty close to the post “to get around there.” A third witness testified that he saw the respondent attempting to make the turn at the time of the accident, and that the space was too narrow and was dangerous even when care was
“On the whole we are inclined to think, under the rules we have so often announced and under the rule announced by the supreme court of the United States in Milwaukee St. P. R. Co. v. Kellogg, 94 U. S. 469, viz., that what is the proximate cause of an injury is ordinarily a question for the jury; that it is not a question of science or of legal knowledge, but is to be determined as a fact, in view of the circumstances of fact attending it, — that there was sufficient testimony on the question of negligence to be submitted to the jury.”
Whether the respondent was guilty of contributory negligence was also a question for the jury. The contention that, if he was in fact attempting to turn, he made the attempt too soon and thus struck the first post, even if conceded, can hardly be held contributory negligence as a matter of law. The distance from the post struck and the platform onto which he had to pass at a right angle was less than two feet. Obviously, the turn had to be made in that distance. It would be drawing the line much more narrowly than any authority would warrant to say that, as a matter of law, he was negligent in failing to proceed a foot or eighteen inches further
“The law is, that if the plaintiff was guilty of any want of ordinary care and prudence (however slight), which neglect contributed directly to produce the injury, he cannot recover. And so were the jury instructed, in substance and effect. It is not the law that slight negligence on the part of the plaintiff will defeat the action. Slight negligence is the want of extraordinary care and prudence; and the law does not require of a person injured by the carelessness of others, the exercise of that high degree of caution as a condition precedent to his right to recover damages for the injuries thus sustained.” Cremer v. Town of Portland, 36 Wis. 92.
See, also, Gage v. Springston Lum. Co., 47 Wash. 141, 91 Pac. 558; Atherton v. Tacoma R. & Power Co., 30 Wash.
Did the respondent assume the risk? That the dangers attendant upon the narrowness of the platform were open and obvious is admitted. The respondent and another man observed them and protested against their continuance. The respondent and two other witnesses testified positively that he proceeded with the work only after a direct order from the foreman supplemented by a promise to remedy the defect. We will not review the evidence further than to say that we deem the protest, order and promise overwhelmingly established, and that the promise related to the place where the turn had to be made, not the place where the wheelbarrows were to be emptied, as claimed by the appellant. Where the servant proceéds in obedience to an order, even without a promise to repair, he does not, as a general rule, assume the risk of unnecessary dangers injected into the work by the master’s negligence.
“The servant assumes the risk of obedience, or is guilty of contributory negligence in obeying the order, only when the added danger so incurred is open, patent and obvious alike to man and master, and so plain that reasonable men might not differ as to its existence, and so imminent that a reasonably prudent man would not obey the order. ‘In other words, if a danger is not so absolute or imminent that injury must almost necessarily result from obedience to the order, and the servant obeys the order and is injured, the master will not afterwards be allowed to defend himself on the ground that the servant ought not to have obeyed the order.’ 1 Labatt, Master and Servant, p. 1241, § 439.” Rogers v. Valk, 72 Wash. 579, 131 Pac. 231.
See, also, Withiam v. Tenino Stone Quarries, 48 Wash. 127, 92 Pac. 900; Campbell v. Winslow Lum. Co., 66 Wash. 507, 119 Pac. 832; Offutt v. World’s Columbian Exposition, 175 Ill. 472, 51 N. E. 651; Gundlach v. Schott, 192 Ill. 509, 61
In the case in hand, the respondent’s position is further strengthened by the promise to repair. ' There was'some evidence from which the jury might have found that he proceeded with the work in reliance upon this promise. The promise was unconditional, and related solely to the safety of the servant. We are committed to the rule that in such a case “the risk of the defect is cast upon the master until such time as would preclude all- reasonable expectation that the promise might be kept, unless the danger from the defect is so imminent that no person of ordinary prudence would risk injury from it.” Morgan v. Rainier Beach Lum. Co., 51 Wash. 335, 98 Pac. 1120, 22 L. R. A. (N. S.) 472; Crooker v. Pacific Lounge & Mattress Co., 29 Wash. 30, 69 Pac. 359; Shea v. Seattle Lum. Co., 47 Wash. 70, 91 Pac. 623; Hough v. Railway Co., 100 U. S. 213; 26 Cyc. 1209, and cases there collected. Clearly the question of assumption of risk was one for the jury.
A review of the many authorities cited by the appellant from this and other jurisdictions would serve no purpose. They merely illustrate the fact so often noted that each case of this character is largely determinable from its own facts and circumstances.
Many assignments of errors claimed are based- upon the giving of certain instructions and the -refusal of certain others. Most of these are sufficiently disposed of by what we have already said. To review them all in detail would extend this
We find no error which would justify a reversal.
The judgment is affirmed.
Main, Morris, and Fullerton, JJ., concur.