Acres v. Frederick & Nelson, Inc.

• Decision Date: 29 April 1914
• Docket Number: 11,526.
• Court: Washington Supreme Court
• Parties: ACRES v. FREDERICK & NELSON, Inc.

140 P. 370

79 Wash. 402

ACRES v. FREDERICK & NELSON, Inc.

No. 11,526.

Supreme Court of Washington

April 29, 1914

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Patrick J. Acres against Frederick & Nelson, Incorporated. From a judgment for plaintiff, defendant appeals. Affirmed.

John W. Roberts and Wright, Kelleher & Caldwell all of Seattle, for appellant.

James T. Lawler, of Seattle, for respondent.

GOSE J.

The plaintiff, an employé of the defendant, fell into an elevator shaft in defendant's warehouse, on September 18, 1912 and sustained injuries for which he demands redress in this action. There was a verdict and judgment in his favor for $4,000. This appeal followed.

The appellant raises the following questions: (1) That the Industrial Insurance Law, Laws 1911, p. 345, withdraws this class of actions from the courts; (2) that there was no negligence shown; (3) that the respondent was guilty of contributory negligence; (4) that he assumed the risk; (5) that, if any negligence was proven, it was that of a fellow servant; (6) that respondent was a mere licensee in the building at the time and place he received his injury; (7) that the negligence, if any, was that of an independent contractor; (8) that the court erred in refusing to submit certain interrogatories to the jury; (9) that the damages are excessive.

The first question merits scant attention, for the following reasons: (a) It is not raised in the pleadings and was not suggested in the court below; (b) it is not briefed in this court further than a mere reference to the statute; and (c) the appellant has not brought itself within the terms of the act. Section 8, p. 362, provides: 'In respect to any injury happening to any of his workmen during the period of any default in the payment of any premium under section 4, the defaulting employer shall not, it such default be after demand for payment, be entitled to the benefits of this act, but shall be liable to suit by the injured workman * * * as he would have been prior to the passage of this act.' It was the duty of the appellant to plead and prove a compliance with the act.

A consideration of the second question, viz., that there is no evidence of negligence, requires a reference to the facts which the evidence tends to prove. Appellant's warehouse, consisting of basement, main floor, and upper floor, is 120 feet square. The main floor is used for storing furniture. The office is near the northwest corner. Not far from it are the electric light switches. The elevator, 8 by 10 feet in dimensions, is situated a little to the west of the center. It is operated by means of a rope upon a cable. The gates work automatically; that is, when the elevator is down the gates are up, and when the elevator is up the gates are down. A passage runs north and south through the center of the building, connected by four short passages with a parallel passage on the east leading to a toilet in the southeast corner. Respondent testified that he began working for appellant on September 17th; that, on arriving the next morning, he registered at the office at 7:20, and went to the toilet; that he had been there twice the previous day; that he walked east from the office to the east passage and followed that south to the toilet; that in returning at 7:25 he got confused, followed the east passage to about the center of the building, and turned west through a passage which led directly to his place of work; that the floor was dark, the lights from above casting a glimmer thereon; that the passageways were not straight; that in his confusion and in the darkness, not having the elevator in mind, he fell into the open shaft and received his injury; that furniture was piled on both sides of the passageways, some of it to a considerable height; and that on the afternoon before they had piled it all around the elevator. A diagram of the building shows that about one-half of the wall space on three sides is windows, but the respondent said that the lighting was inadequate: (a) Because the windows were not kept clean; and (b) because of the height of the furniture, that is, that there was light above, but not sufficient light upon the floor. He further testified that electric lights were used for lighting this floor during the working day, but were not on at the time he fell. The working day began at 7:30 a. m. The sun rose at 5:50 a. m. on September 18th, but the local representative of the weather bureau testified that the weather was 'partly cloudy.' It developed during the trial that the elevator was on the top floor, and that the gates were tied up with ropes at the time of the accident. It is not shown who tied the gates. The testimony further shows that the elevator was being repaired during the afternoon of September 17th.

One Montgomery, who was engaged in repairing the elevator on the 17th, testified as follows: 'Q. In what condition did you find the elevator? A. There was something got caught in a beam and bent it, and we took a sledge hammer and straightened it. * * * Q. Did you have to work the elevator up and down? A. No, sir. Q. Did you have to bring it down to the main floor? A. It was at the main floor. Q. What did you do with the gates? A. Took a casting off there. Q. Off the gates? A. Yes. Q. Why did you take the casting off? A. It was broken. It has nothing to do with the gates being down. This casting was broken. Your gates go down and the gates were down. Q. In order to repair the elevator, the gates had to be out of the way? A. No, sir; the gates were down, and we were on that car straightening the car. Q. You brought the car down to the first floor? A. The car was at the first floor * * * Q. And the gates were right in place? A. Yes, sir; the gates were down. Q. How could the gates be down if the elevator was down? A. The automatic part was broken. Q. And you fixed it? A. Not at that time, but I got it fixed. Q. When did you fix it? A. Well, the day after or the following afternoon, as near as I can remember. Q. The casting? A. Yes, sir. * * * Q. You left the elevator on this floor when you left? A. Yes, sir. Q. And the elevator was on that floor with the gates down? A. Yes, sir. * * * Q. You say that the automatic casting was broken? A. Yes, sir. Q. And the fact of that being broken, then the gates could not work? A. The gates would go down. Q. And they could not work? A. They could not be raised. Q. You would have to raise them by hand? A. You would have to raise them by hand. * * * Q. And if one went there and wanted to see them, it is very easy to slide them up and down with their hands? A. Yes, sir. * * * Q. Then a few days later when you fixed the automatic casting, then the elevator would work automatically? A. Yes, sir; after the elevator was repaired.'

It will be observed that the repair work was being done on the afternoon of the 17th of September; that a casting was broken so that the gates would not work automatically, but had to be worked by hand; and that they were not repaired until after the respondent was injured. The appellant's testimony shows that about 23 men were working in the warehouse, and that each of these men used the elevator as the necessities of the work required. The primary question is: What was the proximate cause of the accident; was it the tying up of the gate, or was the tying up of the gate a mere incident? We think the proximate cause of the injury was the broken casting. The employés used, and were expected to use, the elevator in the prosecution of their work. If they found it more convenient to tie the gates than to raise and lower them by hand in carrying on the work, this would not exempt the master from liability, even if it were shown, which it was not, that the gates were tied by a fellow servant.

It is the duty of the master to use reasonable care to maintain a reasonably safe place for the workmen, and this duty is nondelegable. Dumas v. Walville Lumber Co., 64 Wash. 381, 116 P. 1091; Graaf v. Vulcan Iron Works, 59 Wash. 325, 109 P. 1016.

This rule means that the master must not expose the employé to dangers which may be guarded against by reasonable care and...