Banks v. Seattle School Dist. No. 1 of Seattle, King County

• Decision Date: 29 June 1938
• Docket Number: 27003.
• Citation: 195 Wash. 321,80 P.2d 835
• Parties: BANKS v. SEATTLE SCHOOL DIST. NO. 1 OF SEATTLE, KING COUNTY.
• Court: Washington Supreme Court

80 P.2d 835

195 Wash. 321

BANKS v. SEATTLE SCHOOL DIST. NO. 1 OF SEATTLE, KING COUNTY.

No. 27003.

Supreme Court of Washington

June 29, 1938

Department 2.

Appeal from Superior Court, King County; Roger J. Meakim, Judge.

Action by Nancy Banks, a minor, by W.R. Banks, her guardian ad litem, against Seattle School District No. 1 of Seattle, King County, Washington, for injuries sustained while operating a printing press. From a judgment for plaintiff, defendant appeals.

Affirmed.

B. Gray Warner and Patrick M. Tammany, both of Seattle, for appellant.

Oscar A. Zabel, of Seattle, for respondent.

BLAKE Justice.

Plaintiff brought this action to recover damages for injuries sustained while operating a printing press maintained by defendant for the use of students in connection with a regular course of instruction. From judgment entered upon a verdict in favor of plaintiff, defendant appeals.

The machine was what is called a foot press, the power for its operation being supplied by the pressure of the operator's foot upon a treadle. The press proper is mounted upon four standards, between the front two of which there is a crossbar. The treadle extends under this crossbar and, when in operation, comes to within an eighth of an inch from it. Upon the treadle and at a distance of nine and one-fourth inches from the crossbar, is a foot plate, upon which the operator puts his foot. This foot plate is three and three fourths by eight inches, and has a heel hold.

While operating the machine, respondent's foot slipped and was caught between the treadle and crossbar.

Two charges of negligence were submitted to the jury: (1) Failure to mount the press so as to give greater clearance between the treadle and the crossbar; and (2) failure to equip the treadle with a guard which would prevent the operator's foot slipping between it and the crossbar.

On behalf of respondent, a printer, with seven years' experience with various kinds of presses including those operated by foot power, testified as follows:

'A. On inspecting the treadle I found that the treadle did not have the proper clearance from the cross-member of the frame; that it came up within one-eighth of an inch of the cross-member of the frame; that if it had been so properly mounted--say 2 by 4's were put under the legs and the connecting rod between the crankshaft and the treadle were screwed down and lengthened, there would be no opportunity for anybody having any member of their body caught in between the treadle and the cross-member. But the clearance was not proper between the treadle and the cross-member of the frame.

'Q. Was there any other way to provide a safeguard for the press? A. At the time that I saw the press, the press had a safeguard on it * * *.

'Q. Do you consider it practical to have a guard on this type of treadle? A. Yes, I would consider it practical.'

Appellant's principal contention is that this evidence is insufficient to make out a case of negligence for the jury. The argument is predicated upon the principle stated in 45 C.J. 660, and approved in Ullrich v. Columbia & Cowlitz Ry. Co., 189 Wash. 668, 66 P.2d 853, that 'the question of negligence must be determined according to what should reasonably have been anticipated, in the exercise of ordinary prudence, as likely to happen.'

Measured by this rule, we think respondent's evidence was amply sufficient to take the case to the jury. What with keeping his hands from getting caught by the platen press, the operator can hardly be expected to think about keeping his foot from slipping between the treadle and the crossbar. That such a mishap might occur, and should be reasonably anticipated, we think is sufficiently manifest from the mere description of the machine--particularly when operated by novices of the age of respondent. Since, under respondent's evidence, the injury could have been avoided by a proper guard, or by setting the press up in a manner to give sufficient clearance between the treadle and crossbar, the question of appellant's negligence was for the jury. See Howard v. Tacoma School District No. 10, 88 Wash. 167, 152 P. 1004, Ann.Cas.1917D, 792; Bowman v. Union High School District No. 1, 173 Wash. 299, 22 P.2d 991.

Appellant assigns error upon the denial of its motion for new trial. This error is predicated upon the admission of evidence to the effect that, subsequent to respondent's injury, appellant put a guard on the treadle, designed to keep the operator's foot from slipping between it and the crossbar. This was not admitted as evidence of past negligence, but merely in support of respondent's contention that the machine could be practicably guarded. The court so instructed the jury. The issue being in the case, the evidence, so limited in scope and purpose, was admissible. Erickson v. E. J. McNeeley & Co., 41 Wash. 509, 84 P. 3; Thomson v. Issaquah Shingle Co., 43 Wash. 253, 86 P. 588; Lindblom v. Hazel Mill Co., 91 Wash. 333, 157 P. 998; Wheeler v. Portland-Tacoma Auto Freight Co., 167 Wash. 218, 9 P.2d 101; Hatcher v. Globe Union Mfg. Co., 178 Wash. 411, 35 P.2d 32.

Appellant raises another question, which we shall not discuss, for, as said in its brief, the point made is 'not of sufficient materiality in itself to justify a new trial.'

Judgment affirmed.

MILLARD, MAIN, and BEALS, JJ., concur.

ROBINSON Justice (dissenting).

I find great difficulty in arriving at the conclusion that the defendant school district should reasonably have anticipated that an accident, like the one complained of, might happen. If the decision had been mine alone to make, I would have held, as a matter of law, that the school district was not negligent. But with regard to that question, I cannot, with propriety, urge my personal opinion as against that of an overwhelming majority. I will go so far however as to assert with confidence and conviction that the question as to whether or not there was any negligence shown on the part of the defendant school district was, at least, so close, that the jury might reasonably have answered it in the negative. This being the case, the appellant is entitled to a new trial if the record reveals any error which would conceivably have operated to its prejudice.

In my opinion, the court erred in admitting evidence that the defendant put a guard on the treadle after the accident, and that the error was harmful and prejudicial. The rule is that evidence of precautions taken, warnings posted, or guards installed after the happening of an accident is not ordinarily admissible in actions like the case at bar. For this rule there are very compelling reasons. Lord Chief Justice Coleridge, in Beever v. Hanson, 25 L.J. Notes of Cases, p. 132, said:

'Now, a perfectly humane man naturally makes it physically impossible that a particular accident which has once happened can happen again, by fencing or covering, or at any rate making safe the particular thing from which it arose. That, however, is no evidence of, and I protest against its being put forward as evidence of negligence. A place may be left for a hundred years unfenced, when at last someone falls down it; the owner, like a sensible and humane man, then puts up a fence; and upon this the argument is that he has been guilty of negligence, and shows that he thought the fence was necessary because he put it up. This is both unfair and unjust. It is making the good feeling and right principle of a man evidence against him.'

Previous to that declaration it had been said by an American court in Terre Haute & Indianapolis R. R. Co. v. Clem, 123 Ind. 15, 23 N.E. 965, 966, 7 L.R.A. 588, 18 Am.St.Rep. 303:

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