81 Wash. 64 | Wash. | 1914
Plaintiff brought this action to recover damages for personal injuries sustained while in the employ of the defendant. He was successful in the court below. The defendant has appealed.
The winches are operated by steam by means of cables revolving upon drums, and which run through blocks attached to the ship’s mast. In order to load a heavy piece of machinery, it became necessary to put all the winches in operation. To this end, the first officer, according to witness Haynor, gave an order “to double up and get a block as quickly as possible.” Witness Campbell said the order was “to double the falls in order to lift the load.” And again he said it was to “make fast everything and to double up.” The respondent said the order was “to get a block and double up; to connect it up to the mizzenmast.” Again he said it was “to belay everything and make it [the block] fast, and he told me to make a couple of straps.” The first officer testified that his order “to the sailors” was “to get up a gantline . . . and take it aloft and reeve it through the gantline block and send it down in order to lift up a cargo block to fix at the mast head.” The order was general to all the sailors, and while they do not tell it in the same words, it meant for them to quit other things and connect up the single winches as soon as possible, so that the heavy piece of machinery might be put aboard, it being the last piece to be loaded. The witness Haynor, in obedience to the order, took a pulley block and a lifting line up to the cross-trees on top of the mast, and rove the line through the block, and let it fall for the purpose of taking up the cargo block. The line fouled at the goose neck of the boom. The respondent stepped onto the
“Mr. Haynor was on top leaving the gantline down, and I had to take a pulley or snatch block down. We always take a gantline down and send it on to pick up heavy things like that. And he was on top and Mr. Marquette was on the other side there; and he was leaving that gantline down to me and that was the only place to get it. There was a big steam launch on the deck right there and there was gasoline drums on top of this right here, the height of this was eighteen inches or two feet high, and the gasoline drums were right on the top, and they are four or five feet high, and this is the only place here that I could stand, right here below; I could not get at it and the wind was blowing and he was trying to get it down, and he was getting it tangled between the two booms, and the only way I could get it was to get on the gypsyhead, so I stepped up there with my left foot that way, and my right foot that way, and the lever was over here, and the lever fell down, and my foot got jammed up in this and I was thrown over.”
In answer to the question, “You say there were gasoline drums there on the deck?” he answered, “Yes, there were gasoline drums, and a steam launch and a lot of lumber and everything. We had a big deck load; it was over everything.” Other witnesses gave like testimony. Respondent testified that he had operated the winch a short time in the forenoon, but that he did not set the lever. He further said that he did not know whether the steam was on or off when he stepped upon the winch. He said he knew that, if the steam was on and the lever fell, the winch would start; that he did not look, but obeyed orders. He said, if the clamp and set screw which held the lever in place were right, the lever
The negligence charged is, (a) that the clamp and set screw which were designed to hold stationary the lever which operated the winch were defective; (b) that the appellant should have had the steam turned off the winch or should have left Campbell, the tender of the offending winch, at his post; and (c) that the appellant failed in its duty to use reasonable care to furnish the respondent a reasonably safe place to work, and failed to use reasonable care to furnish reasonably safe instrumentalities.
The appellant denied each charge of negligence, and alleged affirmatively, (a) that the respondent was guilty of contributory negligence; (b) that he assumed the risk; and (c) that his injury was caused by the negligence of a fellow servant. At the close of the respondent’s case, the appellant moved for a nonsuit, which the court denied.
The appellant now contends, (1) that the evidence did not warrant the jury in inferring its negligence; (£) that the respondent was guilty of contributory negligence; (3) that he assumed the risk; (4) that he voluntarily chose an unsafe way when there was a safe way at hand; (5) that his injury was caused by the negligence of a fellow servant; (6) that the case is controlled by the industrial insurance act; (7) that the court erred in giving certain instructions to the jury; and (8) that the verdict is excessive. These propositions will receive consideration in the order stated.
(1) In respect to the negligence of the appellant, it is familiar law that it is the duty of the master to use reason
(2) The same principle applies to contributory negligence. Williams v. Spokane, 73 Wash. 237, 131 Pac. 833.
(3) The appellant concedes that the court correctly instructed the jury on the question of assumed risk, but insists that, the respondent being an expert winchman, and the winch being “open, uncovered and capable of complete examination,” the respondent was guilty of negligence as a matter of law in stepping upon the “fleeting drum” of the winch “without any order and of his own volition,” citing, among other cases, O’Dell v. Northern Coast Timber Co., 63 Wash. 546, 115 Pac. 1085, and Cole v. Spokane Gas & Fuel
(4) The testimony does not tend to show that the respondent voluntarily chose an unsafe way in attempting to get the line when a safe way was at hand. It shows, on the contrary, that he chose the only practicable way in view of the surrounding conditions. Moreover, it shows that he followed the usual and customary way. It is suggested in the briefs that he should have stepped upon the large metal-covered cog wheel, and that this would have been a safe way. He testified that he could not have reached the line from that position. Other witnesses said that he could not have stood on the rim of the cog wheel, because there was nothing for
(5) There is no evidence that the injury was caused by the negligence of a fellow servant. However, if the negligence of the master concurred with the negligence of a fellow servant in causing the injury, the master is liable. Hanson v. Columbia & Puget Sound R. Co., 75 Wash. 342, 184 Pac. 1058.
(6) The contention that the cause falls within the industrial insurance act cannot be sustained. The appellant neither alleged nor proved that it had complied with the act. Indeed, it did not suggest in the court below that it fell within the protection of that law. Acres v. Frederick & Nelson, 79 Wash. 402, 140 Pac. 870; Reynolds v. Day, 79 Wash. 499, 140 Pac. 681.
(7) The court, among other things, instructed the jury that the duty of the master to use reasonable care to furnish the servant with a reasonably safe working place is a nondelegable one. It also instructed that, as a matter of law, the appellant knew of all the defects in the winch which the exercise of reasonable care upon its part would have disclosed. We cannot, within the reasonable limits of an opinion, review the appellant’s several objections to the instructions; nor can we set forth the instructions, or their substance, further than to say that, taken as a whole, they voice the view we have expressed.
(8) The last contention is that the verdict was excessive. There is no conflict in the testimony as to the nature and extent of the injury. The respondent suffered a compound fracture of the right leg near the ankle. Both bones were broken, and the knee was dislocated or the large ligaments
The argument has taken a wide range, and other questions are suggested which a,re closely correlated with those already considered. We do not think they merit special consideration. The judgment is affirmed.
Ckow, C. J., Ellis, Chadwick, and Main, JJ., concur.