71 Wash. 208 | Wash. | 1912
Guiseppe Rosellini and some twelve or fourteen others composed a track gang, and were going from one point to another on hand cars on defendant’s logging road. The first car (there were two of them) carried the foreman of the work. The road ran down a grade, describing a curve, and then up a grade on the other side. Just as the second car reached the bottom of the grade and, as is most likely, the crew began to pump for the ascending grade, the hand car left the track, throwing Rosellini to the ground with such violence that he was killed almost instantly. Just after the accident, one of the brasses from the boxing on one of the front wheels of the hand car was picked up by a workman, it having fallen out just before or at the time the car left the track. This action was brought by Rosellini’s widow, and from a verdict in her favor, defendant has appealed.
Negligence is alleged in that the hand car was “old, worn out, defective, and in want of repair to such an extent that the whole mechanism, running gear, braces, boxing, and bed were loose and rickety, rendering said car unsafe, and making it extremely dangerous for persons to ride upon it.” It is contended that the court erred in admitting evidence that the boxing came out, inasmuch as respondent had not proved that the car was defective in any way as alleged in the complaint. Without following appellant’s argument, we think it is enough to say that, in our judgment, there was evidence tending to show that the car was out of repair. The testimony offered was relevant to the issue submitted by the complaint. No error prejudicial to the appellant resulted therefrom.
Appellant relies principally upon two propositions of law: (1) that the doctrine of res ipsa loquitur does not apply;
“The rule seems well established that an implement of simple structure, presenting no complicated question of power, motion or construction, and intelligible in all of its parts to the dullest intellect, does not come within the rule of safe instrumentalities, for there is no reason known to the law why a person handling such instrument and brought in daily contact with it should not be chargeable equally with the master with a knowledge of its defects.”
But that case voices an exception to the general rule; that is, the primary duty of inspection or of furnishing a safe instrumentality for doing the work is upon the master; and no contrary presumption arises unless it is shown by competent evidence that the duty is upon the servant in a given case, or that the character of the instrument and the manner of its use were such as to charge the servant with a knowledge of its defects. In this case a permissive rather than a positive duty of keeping the car in order was shown, if any duty was shown, and respondent is entitled to recover unless we can hold, as a matter of law, that a hand car is an instrumentality of such simple construction as to shift the duty from the employer to the employee. We cannot so hold. The hand car was not, in a strict sense, an instrument used in the work Rosellini was engaged to do. It was merely an incident
“There was no duty of inspection cast upon the appellant, either expressly or by implication; nor was the truck in his exclusive use or control. Its use was a mere incident to his main employment as a machinist. It is fundamental that it is the duty of the master to furnish the- servant reasonably safe instrumentalities with which to carry on his work, and to maintain them in a reasonably safe condition. Common observation and experience teach that sound appliances do not break when employed in a proper manner and in the use for which they were designed. If they break when so used, it is a circumstance from which it may be inferred either that they were defective in the beginning, or had become so by use.”
It occurred to us in the Graaf case, and it so occurs now, that where employees may come in contact with one of two or more machines or instrumentalities (here there were two), that are used only in an incidental way, it would be unreasonable to hold the employees to the strict duty of inspection, which is usually applied where the instrumentality is in the sole charge of, or is being directed by a skilled employee. To so hold we would have to say that Rosellini and all of his fellow servants would have to inspect the hand car which they happened to use every time they got onto it. As is well said in the case referred to: “It is apparent that the respondent did not intend such a waste of time and energy.”
We understand this to be a case calling for the application of the doctrine of res ipsa loquitur, and will not discuss that principle. We think there is enough in the evidence to show that there was an omission of duty. Appellant insists that the case of Wilson v. Cain Lumber Co., 64 Wash. 533, 117 Pac. 246, is decisive. In that case we held that the master was not bound to exercise more than reasonable diligence to discover a latent defect. Other questions were discussed, but they turned upon the character of evidence offered and have no bearing upon this case.
Judgment affirmed.
Mount, C. J., Parker, Crow, and Gose, JJ., concur.