24 Wash. 577 | Wash. | 1901
The opinion of the court was delivered by
This is an appeal from a judgment of $2,000 obtained for personal injuries. At the close of the plaintiffs testimony, motion for a non-suit was asked and refused. We think this motion should have been granted.
We think, upon the testimony of respondent and his witnesses, that he cannot recover. The exact manner in which the tie upon which the respondent stepped was severed from the rest of the structure is not disclosed by the testimony.. The respondent’s testimony is exceedingly meager. All that he says upon the subject is as follows:
“Q. What happened to you that night ?
A. Well, sir, I was picking up spikes at one o’clock, after we ate our lunch; probably had been working two or three minutes at the time, and as I walked on to one of the short ties, the short tie gave way and let me down and struck my elbow first and my side. >
Q. Which elbow was struck ?
A. This one right here. And it struck my side, knocked the breath out of me; I could not talk for a long time. If it hadn’t been that my elbow struck first, it would have killed me dead.
Q. Did you know anything about there being a short tie there before you fell ?
A. Ho, I did not.
Q. Did you know anything about that tie not being supported or braced?
A. Ho, sir, I did not.”
Then the witness passes to a consideration of his hurts. Another witness testifies, when asked how wide a space had been cut out of the center of this tie, and having stated that the tie had been cut' in the center:
“I could not tell you that, because I didn’t see the tie before he fell in, and it might have been right together, and there might have been an inch or two. I seen the other end of the tie sticking half way across, and the tie*581 that he stepped oil went into the lake, and we did not look for that.”
While there is a great deal of testimony, this is the substance of the testimony in relation to the condition of the tie upon which the respondent stepped. He must necessarily have known that the tearing down and building up of an old structure of this kind was a dangerous occupation. While it was in the night, the testimony shows that it was very light, clusters of electric lights being carried along by the workmen to aid them in seeing the work. It is also in testimony, by witnesses McGuire, Lindsay, Shenk, Morrison, and Woolery, the first two of whom were plaintiff’s witnesses, that the foreman constantly warned the men of their danger, and notified them to look out; and, while the respondent testifies that he did not hear the warning, it seems to us, from the testimony of all the other witnesses, that he ought to have heard it. In addition to this, he knew of the general condition of the road; knew that these ties had been sawed off at stated intervals for the purpose of driving these piles; and it was his duty to be careful under such conditions, whether he had heard the warning to be careful or not. The other men who were with him knew of the condition of this road, and the respondent’s own witnesses testified that, if a person were paying attention, he could have seen the condition of things. They also testified that the gang in which the appellant was working was not in any way hurried by the overseer; that he was not driving the men at all, or urging them to hurry; and that it was plainly a dangerous place to work. Prom the testimony of the respondent alone we are forced to the conclusion that he did not exhibit that care and watchfulness which he should have done under the circumstances, that the danger was apparent, and that the company was, therefore, not responsible for the damages which ensued.
Reavis, C. J., and Eullerton, Anders, and Mount, JJ., concur.