Allard v. Northwestern Contract Co.

• Decision Date: 27 June 1911
• Citation: 116 P. 457,64 Wash. 14
• Court: Washington Supreme Court
• Parties: ALLARD v. NORTHWESTERN CONTRACT CO.

116 P. 457

64 Wash. 14

ALLARD v. NORTHWESTERN CONTRACT CO.

Supreme Court of Washington

June 27, 1911

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by William Allard against the Northwestern Contract Company. Judgment for plaintiff. Defendant appeals. Reversed, and new trial awarded.

F. S Blattner, L. B. da Ponte, and W. C. Morrow, for appellant.

Govnor Teats, Hugo Metzler, Leo Teats, and Ralph Teats, for respondent.

FULLERTON J.

In the month of July, 1910, the appellant owned and operated a rock quarry situated on Waldron Island, in Puget Sound. The rock was quarried by blasting, and when so quarried was carried by means of flat cars from the face of the quarry to a wharf, from whence it was taken to its point of destination. The respondent was an employé of the appellant and worked with the crew which loaded and unloaded the cars. For use in loading, a steam crane was used, which had a maximum capacity of about 10 tons. Rocks heavier than this maximum weight were frequently thrown down from the face of the quarry, and in order to handle them it was necessary to break them into smaller pieces by blasting. One such rock had fallen near the railway track, and was drilled and charged with powder while the respondent was at the wharf unloading cars. On the return of the cars, the respondent proceeded with his helpers and the use of the crane, to again load the cars, and was in the act of fastening a chain around a rock near the one which had been charged for blasting, when the charge therein was fired. The respondent was struck by a piece of rock torn loose by the explosion, and received injuries for which he sues in this action. The jury returned a verdict in his favor in the court below, and this appeal was taken from the judgment entered thereon.

In his complaint the respondent alleged negligence on the part of the appellant, in that it failed to warn him of the impending blast, and thus give him an opportunity to get into a place of safety before its discharge. The appellant in its answer put in issue this allegation of the complaint, and pleaded affirmatively to the effect that the negligence causing the injury to the respondent, if any such there was, was the negligence of a fellow servant, and that the respondent was guilty of contributory negligence.

On this appeal three principal errors are assigned: First, that the evidence was insufficient to justify the finding of the jury to the effect that no warning was given the respondent of the impending blast; second, that the court erred in refusing to hold as a matter of law that the person discharging the blast was a fellow servant of the respondent; and, third, that the court erred in excluding evidence tendered by the appellant to sustain its allegation of contributory negligence.

The first question suggested was clearly one for the jury. The record does show, indeed, that the greater number of the witnesses who were present at the time of the accident testified that warning of the impending blast was given, and that the respondent gave no heed thereto, yet the respondent himself, who was but a few feet distant from the person whose duty it was to give the warning, and still another person but little farther away, who likewise remained in an exposed position for want of a warning, testified that no warning at all was given. The question presented, therefore, is one of conflicting evidence, and not one of want of evidence, and being such it was one within the province of the jury to determine, and their finding thereon is conclusive in the appellate court.

The second contention is also without merit. Since the master suffered the dangerous work of blasting to be carried on by one body of its servants, while others thereof were engaged in different work in the zone of danger, it owed the latter...