103 Wash. 81 | Wash. | 1918
— Lundgren was a sailor employed by the Pacific Coast Steamship Company on its ship the “Bavelli,” moored at the dock at Seattle. He was a member of what is known as the “hold-gang” at the time when the alleged cause of injury accrued. The duty of that gang at the time was to receive certain iron rods or shafting as they were unloaded from the dock to the ship and to stow them in the hold. These
At the time of Lundgren’s injury, he had been at work for about three hours or more; the shafting having been loaded and stowed away during this time in the same manner as the load which caused the injury. This particular load came into the hold and was stopped by the winchman at a position about five feet above the floor. Lundgren then ordered it lowered until one end rested, on the hold bottom, thereupon placing his hands upon the shafting with the intention of swinging them into position immediately above the place of stowage. As he did so, the chain on the shaft-* ing, which had not been clamped down tightly, slipped, causing the load to roll and catch his fingers between the bars. He claims that, had the longshoremen
He also testified that he had told the foreman in charge of the entire operation that “someone was going to get hurt,” and that the foreman had ordered the longshoremen “to go and get some strands of rope yarn.” “You have got to put something between that shafting.” This was for the purpose of keeping the rods or shafting from rolling when lowered. After these directions of the foreman, the longshoremen continued to load as theretofore, paying no notice to the directions, and the foreman left the scene of the operation to attend to his duties on other parts of the dock. After his conversation with the foreman, Lundgren continued to receive loads sent in the same way as the previous ones, and unloaded from fifty to sixty more loads, taking about an hour’s time, in the same way as he had done before his conversation with the foreman.
At the close of the appellant’s case, the respondent challenged the sufficiency of the evidence to warrant its consideration by the jury, which challenge was sus
Among the affirmative defenses plead was that of assumption of risk, and, in our view of the facts, we are satisfied that this defense is fatal to the appellant’s hope of recovery. All the conditions complained of by him were open, obvious and apparent, and all the dangers to which he was exposed were fully appreciated by him and he knew their imminency. From his years of experience, he was thoroughly familiar with the entire operation and understood each detail connected with it, and from his hours of work on this particular job, was absolutely acquainted with the dangers attendant upon the particular work in hand. His own testimony makes it apparent that he was in fear of the very thing which actually happened. Under these facts he must be held to have assumed the risk of these dangers which were open, obvious and apparent and which were necessarily incident to the work, and this is true even though these dangers may have resulted from the negligence of the employer; “the servant assumes all the ordinary risks of service and all the extraordinary risks, i. e., those due to the master’s negligence which he knows and the dangers of which he appreciates.” 3 Labatt, Master and Servant (2d ed.), p. 3188, §1186. See, also, Engirbritson v. Tri-State Cedar Co., 91 Wash. 279, 157 Pac. 677; Sainis v. Northern Pac. R. Co., 87 Wash. 18, 151 Pac. 93; Kelly v. Cowan, 49 Wash. 606, 96 Pac. 152; Williams v. Spokane, 73 Wash. 237, 131 Pac. 833; Waterman v. Skokomish Timber Co., 65 Wash. 234, 118 Pac. 36.
The appellant, however, attempts to evade the operation of the rule of assumption of risk by establishing a promise by the foreman to alter conditions and by his assurance of safety. The evidence does not show any absolute promise to repair, nor does it disclose any
Main, C. J., Mount, Chadwick, and Holcomb, JJ., concur.