73 Wash. 437 | Wash. | 1913
The purpose of this action is to recover damages for personal injuries alleged to be due to the negligence of the defendant.
At the time of the accident, the defendant held a contract with' the Northern Pacific Railway Company for the erection of concrete piers which were to be used for the foundation for a railway bridge to be constructed across the Cowlitz River near Olequa. The piers were to be solid concrete, and in order to construct them, it was first necessary to build forms which would confine the concrete until the same became hardened. On November, 5, 1910, the day of the accident, the plaintiff, together with other workmen, were erecting one of the forms. It is claimed by the plaintiff that one Bell was the foreman in charge of this work. The forms were erected in sections. First, heavy timbers were erected
On the day in question, the plaintiff and his associate were attempting to put the brace at the top of the third section of the form. While thus engaged, Bell directed the plaintiff’s associate to step aside and let him take his place, there apparently being some difficulty in getting the brace into place. Bell, after taking the place of the plaintiff’s associate, directed the plaintiff to step upon the lower end of •the brace nailed to the heavy timber on the side where plaintiff was working, and thereby elevate himself to a position where he could perform the work with greater efficiency; Bell working on the opposite side. In response to this direction, the plaintiff got upon the brace facing outward, his back towards Bell, they both being engaged in attempting to get the brace in place at the top of the section. While thus engaged, and without warning to the plaintiff, Bell, taking a hammer, knocked the top end of the brace, on which plaintiff stood, loose from the heavy timber, and thereby
The case was tried to the court and a jury, and a verdict in the sum of $12,500 was returned in favor of the plaintiff. Motion for judgment notwithstanding the verdict and a motion for a new trial being overruled, the defendant appeals.
The points in issue are: First, was Bell a foreman or vice principal, or was he a fellow workman? Second, if he were a vice principal, was his act in knocking off the brace which precipitated the plaintiff to the ground a mere detail of the work for which the master would not be liable? Third, does the rule of nonliability as applied to the “Scaffold Cases” apply here? And fourth, is the verdict excessive?
I. The question whether or not Bell was a fellow servant or vice principal is one of fact. The evidence on the part of the respondent was positive and unequivocal that the latter was his function; while the evidence on the part of the defendant was equally positive that his relation was that of a fellow servant to the other workmen there engaged. This being a question of fact upon which the evidence was in conflict, it is a matter which is within the province of the jury to determine. The jury were properly instructed upon the question by the trial court, and while there is no specific finding by the jury, yet the effect of their verdict is that Bell was a vice principal. Otherwise, under the instructions, they would have returned a verdict for the appellant. This question having been determined by the jury under proper instructions, must now be taken as a fact so far as the consideration of the case here is concerned.
II. It is claimed by the appellant that the act of Bell which caused the accident was a mere detail of the work, and that in that act he, in any event, was a fellow servant and not a vice principal. In support of this contention the appellant cites Swanson v. Gordon, 64 Wash. 27, 116 Pac. 470; Desjardins v. St. Paul & Tacoma Lum. Co., 54 Wash. 278, 102 Pac. 1034, and other cases of like import. The
“Under the authority of those decisions [Nelson v. Willey Steamship etc. Co., 26 Wash. 548, 67 Pac. 237; Dossett v. St. Paul etc. Lumber Co., 40 Wash. 276, 82 Pac. 273; O’Brien v. Page Lumber Co., 39 Wash. 537, 82 Pac. 114], when the superintendent, without the knowledge of the workman, negligently set in operation an agency fraught with danger, he thereby rendered the company liable for the result of such negligence.”
III. It is argued that, inasmuch as the forms which were being erected at the time of the injury were temporary in their nature in that they were only erected for the purpose of confining the concrete until it had hardened, that the rule of the “Scaffold Cases” should apply, and the appellant should be exonerated from liability. The rule of these cases is that, where a scaffold is built by the workmen from suitable material furnished by the master, and the foreman in charge simply gives direction that the scaffold be erected, but no further instruction, then there is no liability on the part of the master for an injury which is produced by a defect in the scaffold.
In Metzler v. McKenzie, 34 Wash. 470, 76 Pac. 114, it is said:
*443 “We think that the action at bar falls within the rule announced in the above authorities, that, where competent men are employed to do some work on a structure upon which scaffolding, or some other appliance to support the workmen, is required — ‘the employer to furnish the materials, and the employed to construct or adjust the scaffolding or other appliance — the employer is not liable to one of the employees for the careless act of another employee done in the construction, adjustment, or maintenance of the structure or appliance.’ ”
But this rule is clearly not applicable to a situation where the foreman directs a workman into a place which is then safe, and subsequently and without warning, by his own act, renders the place unsafe. The proposition that it is the duty of the master to furnish the employee a safe place in which to work is so well settled as not to require the citation of authority in its support. And if it is the duty of the master to furnish a safe place, it is equally his duty to refrain from causing the place to become unsafe by his positive act or that of his foreman, for which he is responsible.
IV. It is argued that the verdict is excessive. If the evidence of the appellant’s witnesses is to be accepted, the verdict is for such an amount as to indicate passion or prejudice on the part of the jury that rendered it; but if the evidence of the respondent’s witnesses is to be believed, there is abundant substantial evidence to support it. Apparently, the jury believed that the evidence of the latter described the real condition. There being substantial evidence to support the amount of the verdict, and the jury having passed upon the conflicting evidence, we think the verdict should not be disturbed. .
The judgment is affirmed.
Crow, C. J., Ellis, Fullerton, and Morris, JJ., concur.