73 Wash. 227 | Wash. | 1913
This is an action brought for the purpose of recovering damages for personal injuries. The defendants were contractors doing railroad construction work. At the time of the injury, they were constructing at Earlington, Washington, for the Chicago, Milwaukee & Puget Sound Railway Company, switch tracks in the switch yards located at that place. The method of operation was briefly this: By means of a steam shovel, earth was taken from a pit, placed in dump cars, and then, by means of what is known as a dinky engine, transported some distance up the track, where the sides of the dump cars were loosened and the dirt fell on either side of the track just outside of the rails. This caused ridges or mounds of earth to exist near the track. The track was of substantial construction, having been built with the rails and ties which were to remain upon the ground for a switching track.
About September 14, 1911, the plaintiff was employed by the defendants as a laborer, and a day or two thereafter was placed at work in the pit, where his duties were to assist in moving forward the steam shovel as occasion might require. There were with him three other pit men and a man who was designated as a “coal man.” On the morning of the 21st, the foreman directed all the men that were working in the pit to get two pinch bars, and some other articles, and place them upon the dinkey engine which was then standing near the
The plaintiff claims that the defendants were negligent in that the engine was operated at an excessive rate of speed; that the track was uneven and unsafe; that the leaving of the mounds at the side of the track on which the end of the pinch bar caught was an unnecessary hazard and a dangerous risk; and that the pinch bar had been placed upon the foot board, either.by the foreman himself, or at his express direction and command. The plaintiff, when asked the direct
Error is assigned in the refusal of the court to give requested instructions, and as to instructions given. Two of these will be noticed. The court was requested by the appellants to instruct the jury that there was no evidence that the foreman either placed, or caused to be placed, the pinch bar on the foot board in front of the engine, and that unless they found that the appellants were guilty of some other act of negligence charged in the complaint, they should return a verdict for the appellants. This request was in the following form:
“There is no evidence in this case by which the defendants can be held responsible for the placing of a pinch bar upon the front end of the engine, and if you do not find by a preponderance of the evidence some other acts or omissions constituting negligence on the part of the defendants in this action, then you must find for the defendants.”
The court did not give the instruction requested, either in form or substance, but did give an instruction as follows:
“If you further believe from the evidence that the foreman told the plaintiff to ride upon the front part of the engine and directed him so to do, then the plaintiff in this case would have a right to assume and believe that it would not be an unsafe place to ride, and if it was made unsafe to ride by reason of any act of the foreman, such as the placing thereon of pinch bars or frogs by the foreman or superintendent in charge, and that this became the proximate cause of his injury, then the master would be responsible in compensatory damages.”
The instruction given in effect submitted to the jury the question whether or not the place where the plaintiff was rid
“Outside of the fact that Williams testified positively that he did not remove the stake, the testimony of the respondent did not make a prima facie case on that proposition, and the jury could not reach the conclusion that Williams did remove the stake, without resorting to guesswork and surmise. Of course, it is well established that the jury is the judge of the credibility and reasonableness of the testimony. But it is just as well established that verdicts must be based on facts proven, and not on speculation and surmise.”
It is error to submit a vital issue to the jury when there is no evidence pertaining thereto, and a specific request has been made to withdraw the same from the jury’s consideration. The requested instruction should have been given. In Tergeson v. Robinson Mfg. Co., 48 Wash. 294, 93 Pac. 428, it is said:
“This instruction does not cure the error above mentioned, as it submits an issue not authorized by the evidence tending to confuse the jury. Had the jury, in answer to special interrogatories, found (1) that the appellant had not failed to properly instruct or warn the respondent, (2) that it had*232 performed its duty in furnishing a proper safeguard for the top head of the machine, but (3) that the belt shifter was not a proper appliance for the purpose for which it was intended, a general verdict for respondent, upon the evidence before us, would not be permitted to stand. Yet we are unable to say that the jury did not reach its verdict in this manner.”
The judgment will be reversed, and the cause remanded for new trial.
Mount, Morris, and Ellis, JJ., concur.