72 Wash. 487 | Wash. | 1913
Lead Opinion
In November, 1911, the city of Raymond was opening up and grading a new street, known as Henkle street. This street was situate in an outlying district of the city and in a hilly and wooded section. The work was being done by respondent under contract. In doing the grading, respondent was using two donkey engines and a scraper, taking the dirt from the hilly part of the street and dumping it into the low places. These engines were about 600 feet apart. One hauled the scraper loaded with dirt down the hill, and the other hauled it back, a wire cable being used as a connec
In presenting his appeal, counsel for appellant contends that his case falls within the rule first established in Davies v. Mann, 10 Mees. & Wels. 546, and since followed by many English and American cases, to the effect that, when a plaintiff by his own negligence has placed himself in a dangerous position where injury is likely to result, the defendant with knowledge of the plaintiff’s danger is bound to use reasonable care to avoid injuring plaintiff; and where, by the exercise of such care, defendant could avoid the injury but fails to do so, the defendant’s negligence becomes the proximate cause of the injury and renders him liable. This is but another statement of the rule lately announced by us in Nicol v. Oregon-Washington R. & Nav. Co., 71 Wash. 409, 128 Pac. 628, and O’Brien v. Washington Water Power Co., 71 Wash. 688, 129 Pac. 391.
But we can see no reason for its application here, for three reasons: (1) Appellant was not in a dangerous situation until he stepped over the cable; (2) there is nothing to show that respondent knew, or should have known, that appellant was about to step over the cable; (3) there is noth
Appellant says the court below refused to grant the motion upon the ground of contributory negligence, holding that was a matter of defense; but based the ruling upon the ground that there was no evidence that respondent saw the appellant, or that it knew he was about to cross the street at that time and point, and further that it was not the duty of respondent to post notices in the daytime, nor to tell travelers not to cross. We are not so much concerned with the reasons for the lower court’s ruling as we-are with its correctness. No liability was established against respondent, and the lower court was right in so holding, whatever its reasons might have been.
Judgment affirmed.
Crow, C. J., Ennis, and Main, JJ., concur.
Dissenting Opinion
(dissenting)- — -I dissent. The trail which the appellant followed was one pointed out to him as the proper way by which to reach the place where he intended to go. It was one commonly used by all of the people of the neighborhood. It was not closed by barriers at the point it entered. the street which was being graded, nor was there notices of any sort indicating that its use was discontinued. The cable which caused the appellant’s injury was moving along the surface of the ground in one position when the