Arneson v. Grant Smith & Co.

• Decision Date: 11 May 1922
• Docket Number: 16946.
• Citation: 120 Wash. 98,206 P. 960
• Court: Washington Supreme Court
• Parties: ARNESON v. GRANT SMITH & CO.

206 P. 960

120 Wash. 98

ARNESON v. GRANT SMITH & CO.

No. 16946.

Supreme Court of Washington

May 11, 1922

Department 2.

Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

Action by selvin Arneson against Grant Smith & Co. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles E. Swan, of Spokane, for appellant.

E. W Robertson, of Spokane, for respondent.

HOLCOMB J.

Respondent was injured while working for appellant, an independent contractor of two interstate commerce common carriers, in maintenance work on their lines. His remedy was therefore an action for damages against the contractor rather than under the Industrial Insurance Law (Laws 1911, p. 345). Luby v Industrial Insurance Commission, 112 Wash. 153, 191 P 855.

The negligence on which respondent relies to recover is that appellant furnished him with an unsafe and defective wrench. At the time of the accident respondent was on a scaffold attempting to loosen a two and one-half inch pipe with what is known as a 'Trimo pipe wrench.' He had placed the wrench on the pipe, and was attempting to turn the pipe by throwing his weight against the wrench when it slipped off the pipe. He lost his balance and fell from the scaffold to the ground, breaking his wrist. The wrench which respondent was using had been handed to him by one Gavert, with whom he was working at the time, and who testified, as did respondent, that the teeth of the wrench were considerably worn, and the springs weak. Respondent himself testified that he had not examined the wrench and knew nothing about its condition; that he had been in the employ of appellant for about two months, but had been working with Gavert on the pipes about three days only before the accident; that he had never done any work upon pipes, or with a pipe wrench, before. The only work he had done before had been farm work, except one summer he had pushed ore cars out of a mine, and for eight months at one time, and for two months at another time, he had worked as a railroad brakeman. He had also worked six months piling lumber; had worked with pick and shovel for appellant on the railroad viaduct for three or four weeks previous to the pipe work; and these constituted all of his experiences at any kind of labor. He had had occasion to use but few tools of any kind. One Christenson was admitted by appellant to have been its foreman and vice principal in charge of the work at the time of the accident. Christenson directed respondent to come down off the viaduct where he had been working with a pick and shovel, and help Gavert; told him that Gavert would tell him what to do, and that Gavert was the pipe fitter. Respondent told Christenson that he knew nothing about pipe-fitting, and had never used a wrench or anything in that line of work, but Christenson told him that the pipe-fitter would show him what to do. For the first three days Gavert and respondent worked on the ground on smaller sized pipe. The foreman then came and ordered them to remove a two and one-half inch drain pipe from beneath the viaduct, and some distance above the pavement. Gavert went over and got the pipe wrench, handed it to respondent, and told him to get busy on the scaffold. Respondent first put the wrench on wrong, when Gavert told him to turn it over. He turned it over, and put the wrench on the pipe again, and started to put his strength to the wrench when it slipped and respondent fell to the pavement. The wrench in question was a large, heavy tool about three feet long. It was the only wrench of that size on the job, and it was necessary to have a wrench of that size for the large pipe.

Gavert testified that he had had occasion to use that particular wrench prior to the date of the accident, and had observed that the teeth or corrugations on the jaws of the wrench were badly worn, and that when in that condition the wrench would slip on the pipe and that this particular wrench had slipped with him on previous occasions. The tools on the job, including this wrench, were kept in the company's tool box, the key to which was kept by the foreman, Christenson, who locked the box at night and unlocked it in the morning. Christenson testified that Gavert reported to him early in the work that some of the wrenches were defective, in that the jaws were worn, but Christenson claimed that he went to a store and purchased a new part for the wrench--that is, a new jaw--and that the new jaw was put on the wrench prior to this accident. He admitted that he knew that, if the jaws of a wrench were worn smooth, and it was used on a pipe by a man on a scaffold, it might slip on the pipe and cause the man to lose his balance and fall.

Appellant in its answer denied the defective condition of the wrench, and by way of affirmative defense alleged: First, assumption of risk, in that the condition of the wrench was open, obvious, and known, or, in the exercise of reasonable care, should have been known by respondent; second, contributory negligence, in that respondent failed to take proper precaution for his own safety; third, negligence of a fellow servant of respondent.

Respondent by reply denied the affirmative matters in appellant's answer.

At the conclusion of respondent's testimony appellant challenged the sufficiency of the evidence to sustain a verdict; moved the court for judgment in favor of defendant; and, upon the conclusion of all the testimony, moved the court to direct the jury to return a verdict for defendant, or to withdraw the case from the jury and enter judgment for defendant, which motions were denied by the court. After verdict appellant moved for judgment n. o. v., and in the alternative for a new trial, which motions were denied, and judgment entered upon the verdict.

Appellant first contends that the wrench given to respondent was a simple tool. To support this contention it cites first the case of Bougas v. Eschbach-Bruce Co., 77 Wash. 347 137 P. 472, which involved a clamp used as a block on rails to hold a steam shovel which had been used by an adult employee for 58 days, the employee being experienced in the work he was performing. We there observed that certain tools, such as 'a backing hammer, a buffer, chisels, claw bars, crowbars, driftpins, dolly bars, a fork used in a dyehouse, a hook with a short handle used for moving timbers in a sawmill, lifting jacks, machine hammers, mauls, monkeywrenches, pinchbars, prize poles, punches, rivet hammers, snap hammers, softheads, and wrenches,' had been held to be simple tools. We are inclined to the view that the pipe wrench involved in this case does not fall within the above category. But, however that may be, as we have observed in the case cited, the rule as to 'simple tools' has not been extended to 'infants, inexperienced young men, and employees using a tool for the first time in obedience to the direction of the master.' we also there observed that this court has been exceedingly liberal...