Anustasakas v. International Contract Co.

• Decision Date: 24 February 1910
• Citation: 107 P. 342,57 Wash. 453
• Court: Washington Supreme Court
• Parties: ANUSTASAKAS et al. v. INTERNATIONAL CONTRACT CO.

107 P. 342

57 Wash. 453

ANUSTASAKAS et al. v. INTERNATIONAL CONTRACT CO.

Supreme Court of Washington

February 24, 1910

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

Action by Banagetas Anustasakas and others against the International Contract Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

See also, 51 Wash. 119, 98 P. 93, 21 L. R. A. (N. S.) 267.

Roberts, Battle, Hulbert & Tennant, for appellant.

Brady &amp Rummens, for respondents.

GOSE J.

This is an action brought by the widow and the minor children of G K. Anustasakas, deceased, against the appellant, for damages for personal injuries to the deceased causing his death, occurring, it is alleged, through the negligence of the appellant. The minors have appeared by a guardian ad litem. There was a verdict and judgment for the plaintiffs, and the defendant has appealed.

At the close of all the testimony in the case, the appellant challenged the sufficiency of the evidence and asked for a judgment in its favor upon three grounds: (1) That its negligence had not been shown; (2) that the deceased assumed the risk; and (3) that his death was caused by his own negligence. The application was denied.

The negligence relied upon for a recovery is alleged, in paragraphs 4 and 5 of the complaint, as follows:

'(4) That at a date prior to the 11th day of April, 1907, the deceased, G. K. Anustasakas, was employed by the defendant as a laborer, and on the 11th day of April, 1907, the said deceased, G. K. Anustasakas, was laboring under the orders and directions of the defendant and its foreman in an excavation at Third avenue and Madison street in the city of Seattle; that the said G. K. Anustasakas was ordered into the said excavation to labor, and he trusted the defendant and its foreman to see that the same was kept safe and in proper condition; that the defendant failed to provide the said deceased, G. K. Anustasakas, with a safe place in which to work; that the defendant carelessly and negligently failed to provide any material for propping up and bracing the walls of the said excavation, and carelessly and negligently failed to properly brace and protect the said walls of the said excavation, and the said defendant and its foreman negligently and carelessly ordered the said G. K. Anustasakas to stay in the said excavation and labor, assuring him that the same was safe, after one of said laborers had notified the foreman of the defendant in charge of the work that the said walls were unsafe and the walls should be protected to prevent the same from caving in.

'(5) That by reason of the carelessness and negligence of the defendant in failing to provide the proper material for bracing the said walls, and by reason of the negligence and carelessness of the defendant in failing to properly brace and protect the walls of the excavation, and by reason of the carelessness and negligence of the defendant in ordering and keeping the said deceased G. K. Anustasakas and his fellow laborers in the said excavation after the defendant was notified that it was unsafe, the said walls caved in, and the said G. K. Anustasakas was covered by the earth and buried and crushed thereby, and by reason of the said injuries so received died a few hours later.'

The deceased was injured by the caving of the walls of a trench in which he was working, and death resulted in a few hours. The appellant was engaged at the time of the accident in laying a water main in the city of Seattle. The trench had been dug some ten days or two weeks before the accident occurred. The excavation where the deceased was injured was about three feet in width and seven or eight feet in depth. A few minutes before the injury, and foreman of the appellant directed the deceased to abandon the work he was doing and go into the trench and dig some 'bell' holes; that is, holes under the pipe joints so that the joiner could connect the pipe. While in the trench, and from 5 to 15 minutes after he had finished, the wall caved, and a mass or block of earth struck the deceased with such force as to cause his death.

There are numerous assignments of error, and the discussion in the briefs has taken a wide range; but the material facts developed upon the trial made the issue a simple one. The respondents' testimony tends to show that it is usual and customary to brace the walls of excavations of the depth of the one where the deceased was injured; that they were not braced, and no material was furnished with which to brace them; that a few minutes before the accident a fellow servant of the deceased directed the attention of the appellant's foreman to a crack in the ground near the wall of the trench and opposite the place where the deceased was working; and that the foreman neither warned the deceased nor took any steps to protect him. The appellant met this state of facts with testimony tending to show that no such custom obtained; that the soil at the place of the injury was hard blue clay or hardpan, containing gravel; that the caving could not have been reasonably anticipated; and that the attention of the foreman was not directed to the crack. This made a simple issue, which the jury resolved against the appellant, and the court properly denied its motion for a judgment.

It is however, asserted that the deceased was an experienced man in that kind of work; that he assumed the risk arising from the master's failure to brace the walls; and that that issue should not have been submitted to the jury. This contention cannot be sustained. The question of the assumption of risk was one of mixed law and fact. It is true that the fact that the wall was not braced was open...