63 Wash. 356 | Wash. | 1911
Appellants, widow and child of Carl Lewinn, deceased, brought this action to recover for his alleged wrongful death through the negligence of respondent, and appeal from a judgment of dismissal granted by the court upon motion of respondent at the conclusion of appellants’ case.
Respondent was the contractor engaged in the construction of a steel frame building at Spokane, and deceased was in his employ. On May £8, 1906, the building had reached a height of four stories. The framework was of steel, and iron columns on each floor connected with steel-girders running east and west, and eyebeams running north and south. The girders were from fifteen to twenty feet long, the eyebeams from eighteen to nineteen feet long, and running at right angles to each other, leaving open spaces on each floor about
Deceased was a mortar mixer,. working on the outside of the building; but about 1:30 p. m. he was called by respondent to assist him in hoisting window frames to the third story, by means of a rope running through a pulley on the fourth floor. In doing this hoisting, they were assisted by men on the third floor, who, standing upon a platform partially built across the opening, took the frames as they came up through one of these open spaces and carried them to the required place. Respondent and the deceased had been engaged at the work about twenty minutes when a stick of timber, 4x4 and about six feet long, fell from the third floor, striking a girder on the second floor, from which it bounded^ and falling again, struck deceased on the head, inflicting fatal injuriés. The negligence alleged was in not furnishing a safe place in which to work, and negligent manner of construction. In addition to the above facts, there was testimony, to the effect that using the hoist as they were using it, and. the walking of the men upon the plank runway, in carry
There was no evidence as to the place from whence the timber that struck deceased came, except that it fell from the third floor. No witness testifies, either directly or by venturing an opinion, as to what caused it to fall. There is no suggestion of human or other intervening agency in its fall. There is no evidence that the timber and material piled on the third floor were piled in a careless or negligent manner, or in a manner different from that used- by prudent contractors in the same character of construction. There was no evidence that it was so piled as to be jarred loose by the vibration, caused by hoisting material or carrying it across .the planks, or that it was so jarred loose. The cause of the fall was, therefore, a conjecture and speculation. No jury could have determined it except as “it might have been.” The law will not permit verdicts to rest upon such conjecture and speculation, and the court was right in its ruling. Wechter v. Great Northern R. Co., 54 Wash. 203, 102 Pac. 1053, and other cases from this court there cited. It is not a case for the application of the rule of a reasonably safe place. There was nothing to show the place was not reasonably safe, except the accident itself. There was no suggestion as to what could have been done to make it safer, or to prevent accidents of like character. The doctrine of reasonably safe place does'not apply to the construction of buildings or other situations where the character of the place is constantly changing, with the same force as it does tt> a completed structure or other permanent and fixed place. All that is required is that the place be as reasonably safe as the
Failing to establish any theory of negligence upon which a recovery could be predicated, appellants next invoice the doctrine of res ipsa loquitur upon which to base their right of recovery. With the exception of actions directed against common carriers, this rule has been applied to injuries received from falling objects more frequently than to any other class of cases. But even in these cases, there is a well defined line along which the doctrine runs. It has never been applied by the courts except where the facts and demands of justice make its application essential, depending upon the peculiar facts and circumstances in each particular case, and where the duty which the defendant owes the injured person is of such a nature that proof that the accident happened under the given conditions is of such value in law as to afford evidence of negligence' in itself, and thus make out a prima facie case; and only then when the producing cause of the injury is under the control of the defendant, and the accident is of such a nature that it would not ordinarily occur except from the lack of due care. Thompson, Negligence, §§7635, 7636; Anderson v. McCarthy Dry Goods Co., 49 Wash. 398, 95 Pac. 325, 126 Am. St. 870, 16 L. R. A. (N. S.) 931.
“The true rule would seem to be that when the injury and circumstances attending it are so unusual and of such a nature that it could not well have happened without the*361 company being negligent or when it .is caused by.something connected with the equipment or operation of the road, over which the company has entire control, ... a presumption of negligence on the part of the company usually arises from proof of such facts.” 4 Elliott, Railroads, § 1644.
See, also, Allen v. Northern Pac. R. Co., 35 Wash. 221, 77 Pac. 204, 66 L. R. A. 804; Firebaugh v. Seattle Elec. Co., 40 Wash. 658, 82 Pac. 995, 111 Am. St. 990, 2 L. R. A. (N. S.) 836.
“The phrase res ipsa loquitur, as applied to negligence cases, is used to give expression to the idea that, when an accident is shown to be of such a character as, in the light of ordinary experience, is inexplicable except as the result of negligence, then negligence will be presumed.” De Yoe v. Seattle Elec. Co., 53 Wash. 588, 102 Pac. 446.
There is nothing in the case before us to justify a holding that the falling of a piece of .timber in an incompleted building, with practically open spaces between the different floors, is of such an unusual and extraordinary occurrence that it would not happen except for want of due care on the part of the contractor, or that the cause of the fall was something over which the contractor had absolute and complete control; and that in the nature of things there could be no fall except in the negligent doing of some act peculiarly within the knowledge and control of the contractor. If the falling object was one that had been permanently put in place, upon whose stability, firmness and immovability the employee had a right to rely, and to assume the use of due care and caution in making it firm and stable, there might be debatable ground for the application of such a rule, but we can find none in the situation presented in this record.
There are many cases applying the doctrine where pedestrians upon the sidewalk or street below have been injured by falling signs, or boards or bricks, falling from the roof or other portions of completed buildings. Such cases readily fall within the true application of the rule in all its requirements, and we have found one case where a pedestrian was
We have said we have found no case where, under a similar state of facts, the doctrine of res ipsa loquitur has been applied. We have, however, found many like cases where it has not. In McGowan v. Nelson, 36 Mont. 67, 92 Pac. 40, plaintiff, an employee, was injured by a plank falling upon
We therefore concur with the court below, and the judgment is affirmed.
Crow, Ellis, Parker, and Mount, JJ., concur.