Beseloff v. Strandberg

• Citation: 62 Wash. 36,113 P. 250
• Court: United States State Supreme Court of Washington
• Decision Date: 01 February 1911
• Parties: BESELOFF v. STRANDBERG et al.

113 P. 250

62 Wash. 36

BESELOFF v. STRANDBERG et al.

Supreme Court of Washington

February 1, 1911

Department 2. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by Aleck B. Beseloff against Charles J. Strandberg and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Brady & Rummens and Carl J. Smith, for appellants.

Jay C Allen and Philip Tindall, for respondent.

CHADWICK J.

Plaintiff was employed as a mucker in a mine located on Esther Creek near Fairbanks, Alaska. The mine was owned and operated by defendants. The mine was in gravel formation, and the manner of operating was as follows: A shaft had been sunk to the bed rock, and from the bottom of this shaft a drift or tunnel about 10 or 12 feet wide and 8 feet high, was made into the dirt. The bed rock thus became the floor of the tunnel. The earth and gravel were frozen from the surface to the bed rock, and the tunnel was extended by driving steam pipes, called 'points,' into the face, through which steam was driven, until the earth and gravel were sufficiently thawed to permit of their removal. This was done by loading the loose material in wheelbarrows. These were propelled to the shaft, where the contents were carried to the surface, and there washed for gold. The tunnel was lighted by electricity, the light being extended nearly to its face. At about 5:30 o'clock in the afternoon plaintiff, while engaged about his work in the tunnel, discovered a crack in the top and running lengthwise of the tunnel. This crack was about five or six feet long, and, while the testimony is not entirely clear, it is likely that it was large enough for him to put his fingers in. At about this time Dave Strandberg, one of the defendants, came into the tunnel, and his attention was called to the crack by plaintiff, who said, 'That looks bad.' Strandberg carried a candle set in a miner's candlestick. He examined the crack, aided by the light of the candle, and then stuck the candle into the side wall of the tunnel, and picked at the crack with a miner's pick. He satisfied himself that it was safe, saying to the plaintiff: 'That is all right. You must finish all loose dirt. You keep working until six. When you quit, I will put props under it and hold it up.' After a short time, 5 or 10 minutes (plaintiff had made one load and was reloading his barrow), a chunk of frozen earth fell from the roof of the tunnel, striking plaintiff on the ankle, breaking the ankle, and resulting in a permanent anchylosis and dislocation. From a verdict entered on a judgment in favor of the plaintiff, defendants have appealed.

The defense in this case is grounded on the doctrine of assumption of risk, and that the danger was open, obvious, and so apparent that a man of ordinary prudence would not hazard his life and limb by continuing his work after notice thereof. The defense also involves the principle which we believe has never been directly urged in this court; that is, admitting that Strandberg did promise to repair, or, as in this case, to timber the roof of the tunnel, it was a promise to repair or remove the danger after respondent's work was done, and was not made for the benefit of or with intention that it would inure to his benefit during the time he was at his work, the testimony showing that he would go off shift at 6 o'clock, and therefore the promise would not relieve respondent of his duty of himself or exempt him from the rule of assumption of risk. It would be idle for us to review the many cases decided by this court wherein it has been held that a man is bound to exercise common sense and take notice of such dangers as by the use of his senses are apparent, or ought to be apparent, to a man of ordinary prudence. These are general rules, but they are not so fixed that they may not be modified when the testimony reveals a state of compelling circumstances. Just how far a servant may go in acting upon a promise of the master to make a dangerous place safe cannot be set down as an inflexible rule of law; for, notwithstanding expressions which may be gleaned from the cases, it is generally a question of fact to be determined by the jury having reference to the qualifying facts and circumstances of the particular case. Bailey v. Mukilteo Lumber Co., 44 Wash. 581, 87 P. 819; Christianson v. Pacific Bridge Co., 27 Wash. 582, 68 P. 191; Johnson v. Collier, 54 Wash. 478, 103 P. 818; Morgan v. Rainier Beach Lumber Co., 51 Wash. 335, 98 P. 1120, 22 L. R. A. 472. So here, although appellants insist that respondent knew, or should have known, that the place was dangerous, and that he assumed the risk of continuing his work, they are met by the judgment of one of the defendants who, after a careful inspection with candle and pick, pronounced the tunnel safe. Shall we then say that where two men, each having an interest in his own safety, have differed in their judgment, the minds of reasonable men sitting as jurors cannot differ, and that respondent should be held to answer for his negligence while appellant is exonerated from his error of judgment? In all hazardous occupations, and especially in mining, occasions must of necessity arise--and frequently, too--which call for the exercise of judgment. One may see a danger and the other insist that there is no danger. At such times it would seem, and indeed the history of the cases shows it to be true, that almost without exception the common laborer will give way to the judgment of the master. Inexperience will follow that experience which bears an assumption of superior knowledge. The obvious deduction from these premises, then, is that, where a question of danger arises and there is a difference of judgment and the master assures the servant that it is safe to proceed with his work, the servant proceeds at the risk of the master, and the defense of assumption of risk will not avail, unless there is a showing of a new condition following the assurance of the master that would bring the servant within the general rule.

In Green v. Western American Company, 30 Wash. 87, 70 P. 310, quotation is made from Mining Company v Schmidt, 104 F. 282, 43 C. C. A. 532: 'Whatever may be the exempted of the employer from liability...