67 Wash. 164 | Wash. | 1912
The plaintiffs, the widow and minor children of George Wesley Parr, deceased, brought this action to recover damages arising from his death, alleging that he lost his life in consequence of the defendant’s negligence, while in its employ. There was a verdict and judgment for the plaintiffs. The defendant has appealed.
The appellant, at the time of the happening of the accident, was engaged in the construction of a concrete bridge across the Spokane river, at Monroe street. The plan adopted required the erection of high concrete piers. The piers on the south side of the river had been built up to a height of about forty-seven feet. In carrying on the work, the concrete was placed in wooden forms. These forms were six to eight feet in height, eight feet in width, and about seventeen feet in length, and rested on the top of the piers. They were made of heavy timbers, set transversely, to which were nailed or spiked smaller timbers, placed vertically, and to these were nailed light boards or planks, thus forming a box-shaped receptacle open at both ends. The larger timbers were held together by rods, passing from side to side and fastened by nuts and washers. The concrete was emptied into the forms and put in place by men within. After the concrete had hardened, the forms were removed. The concrete was mixed on the north side of the river, where it was emptied into buckets weighing about three tons when filled. These buckets were then elevated to an overhead cable, and carried to a point directly above the forms, by means of a traveler running upon the cable, the power being supplied by an engine on the north side of the river. The cable was about one hundred feet above the forms, and attached at either end to a tower. The bucket was attached to the traveler by a cable running through a block and tackle and
At the close of the respondents’ evidence, the appellant moved for a nonsuit and, after all the evidence was submitted, it moved for a directed verdict. After return of the verdict, it moved for a judgment notwithstanding the verdict. The denial of these motions raises the first and principal question presented by the appeal. The appellant contends that there is no evidence of negligence. On the other hand, the respondents’ position is that the jury was warranted in finding that it was negligence to lower the bucket into the form while it was swinging. The evidence touching this question is as follows: A Mr. Beardsley, the foreman for the appellant in the construction of the forms, was introducéd as a witness by the respondents, and asked what caused the form to fall. He answered: “The bucket struck it and knocked it down.” He wás then asked: “Was that bucket controlled by signals?” and answered: “Yes, sir. He controlled it as far as he could, and the bucket came down swinging and knocked it down.” Mr. McCartney, the city engineer and superintendent in charge of the work, testified in behalf of the appellant that the signalman stood upon a platform between the two south piers so that he could see into
It seems clear to us from this-testimony that the jury had abundant warrant for finding the appellant guilty of negligence. The reasonable interpretation of the testimony of the superintendent is that the failure of the signalman to give a stop signal before the .bucket reached the form was the proximate cause of the death of the deceased. It must have been apparent to him that, with the swing which the bucket had developed, it would strike the form if lowered into it at that time. He knew the approximate weight of the bucket, and it was his plain duty to stop it until its motion had been sufficiently arrested to make it reasonably safe to lower it into the form. The appellant does not meet the issue by saying that it does not know what caused the bucket to develop so wide a swing at the time in question, and that it does not know how its motion could have been arrested. It cannot plead ignorance of simple natural laws. Common observation and experience teach that the sweep
“But it must be borne in mind that it is not sufficient to justify the court in taking the case from the jury that the facts be undisputed, but it must also appear that there is no room for a difference of opinion as to the inferences and conclusions to be drawn from admitted facts.”
In Steele v. Northern Pac. R. Co., 21 Wash. 287, 57 Pac. 820, the court quoted with approval from vol. 2, Thompson on Negligence, page 1236, as follows:
“It is frequently stated that, when the facts are undisputed or conclusively proved, the question of negligence is to be decided by the court. A better opinion, however, would seem to be that, in order to justify the withdrawal of the case from the jury, the facts of the case should not be undisputed, but the conclusion to be drawn from those facts indisputable. Whether the facts be disputed or undisputed, if different minds may honestly draw different conclusions from them, the case should properly be left to the jury.”
See, also, Campbell v. Jones, 60 Wash. 265, 110 Pac. 1083. That the question of the appellant’s negligence was for the jury to determine finds support in the following cases: Hilgar v. Walla Walla, 50 Wash. 470, 97 Pac. 498, 19 L. R. A. (N. S.) 367; Campbell v. Jones, supra; Grosjean v. Denny-Renton Clay Coal Co., 62 Wash. 196, 113 Pac. 570;
The appellant relies upon Nordstrom v. Spokane & Inland Empire R. Co., 55 Wash. 521, 104 Pac. 809, 25 L. R. A. (N. S.) 364, and kindred cases from this and other courts. In that case, the plaintiff lost an eye in consequence of steel filings getting into the eye while sawing steel lugs. He admitted that he knew that the fine dust produced by the sawing of the lugs had theretofore gotten into the eyes of other employees, and that it caused an inflammation of the eye. His contention was that he did not know that it might result in a loss of an eye. A recovery was denied, upon the ground that it was one of that class of accidents which are so rare, unexpected, and unforeseen that the master, in the exercise of reasonable care, could not be held to have anticipated it.
The appellant pleaded affirmatively, (1) that the deceased assumed the risk, and (2) that the negligence which caused his death, if there was any negligence, was that of a fellow servant “in the manner of lowering the bucket.” The court instructed the jury to disregard these defenses. This is assigned as error. In considering the question of assumption of risk, it is to be remembered that the deceased was working at the base of the pier, where he had been directed by the foreman to work about an hour before he lost his life. The order was an implied assurance that the place was safe. As was said in Cox v. Wilkeson Coal & Coke Co., 61 Wash. 343, 112 Pac. 231:
“He had been called by one in authority over him, and told the place was safe. It was his duty to obey the call, and in so doing he could rely upon the safety of the place to which he was called.”
It is well settled that he did not assume the risk of the master’s negligence. Anustasakas v. International Contract Co., 57 Wash. 453, 107 Pac. 342; Anderson v. Globe Nav. Co., 57 Wash. 502, 107 Pac. 376; Bailey v. Mukilteo Lum
The coui’t instructed the jury as follows:
“Where in carrying on work it is necessary that some of the work be directed by signals the signalman designated by the master occupied the position of the master so far as the giving of the signals was concerned, and his wrong signal or failure to signal is the wrong signal or failure of thé master.”
Error is assigned to this instruction. What we have already said disposes of this question. The other instructions given by the court were within the issues and correctly stated the law of the case.
The judgment is affirmed.
Dunbar, C. J., Fullerton, Parker, and Mount, JJ., concur.