Blair v. City of Spokane

• Decision Date: 29 December 1911
• Citation: 119 P. 839,66 Wash. 399
• Court: Washington Supreme Court
• Parties: BLAIR et al. v. CITY OF SPOKANE.

119 P. 839

66 Wash. 399

BLAIR et al. v. CITY OF SPOKANE.

Supreme Court of Washington

December 29, 1911

Department 2. Appeal from Superior Court, Spokane County; John D Hinkle, Judge.

Action by Bessie Ida Blair and others against the City of Spokene. From a judgment for plaintiffs, defendant appeals. Affirmed.

Cannon Ferris, Swan & Lally and A. M. Craven, for appellant.

Nuzum &amp Nuzum and Geo. H. Armitage, for respondents.

MORRIS J.

Action by respondents to recover for the death of their husband and father, caused by the alleged negligence of the city. The accident in which the deceased met his death occurred August 25, 1910, through the fall of a retaining wall and the slide of a fill on what is known as the 'Sprague avenue fill.' This work had originally been done under contract, but, because of the defective methods employed by the contractor, the city had repudiated the contract, and at the time of the accident was taking out the fill and tearing down the wall in places in order to reconstruct on safer and better plans. The charge of negligence was 'the said city of Spokane, defendant, acted carelessly and negligently in removing said rocks from the said fill, as aforesaid, carelessly and negligently removed the support from the side of the said fill, as aforesaid, carelessly and negligently failed to put in braces or supports while removing the rock from said fill.' In another paragraph the original negligent contruction was charged under faulty and insufficient plans, and the adoption of faulty plans in taking down the retaining wall and removing the fill. It will thus be seen that the negligence charged consisted in the original faulty plans and construction, and in the negligent methods employed in seeking to remedy the defects in the original construction.

Deceased was a signal man who stood upon the wall, or on the fill within a few feet of the wall, to convey signals to the engineer who controlled the operation of the boom and skip that was being used to take the rock and earth from the fill and dump it outside the wall. All of this fill was not to be removed, but only so much of it as was deemed necessary in order to rebuild the wall which was the main purpose in the reconstruction. This wall as originally constructed was built as a dry wall; stones and rocks being used without mortar, cement, or other binding force. It was 500 feet long, 30 feet high, 15 feet wide at the base, and 2 feet wide at the top. There was abundant evidence to justify a finding by the jury of all the phases of negligence charged in the complaint. It was also fairly established by the evidence that the wall at the point where deceased either stood upon it or within a few feet of it was not to be taken down on account of a wing wall coming in at that point to support a street crossing. It is also deducible from the evidence that deceased was directed to stand where he did by his foreman, in order to be in the best possible position to give his signals to the engineer, especially after dark, when his position was within the rays of an are light where he could be plainly seen and his signals readily comprehended. The accident happened at about 7:30 or 7:45 in the evening. This was amply sufficient to establish the cause of action, unless the right of recovery was lost by reason of the matters set up in defense, which in so far as the same are here urged are contributory negligence and assumption of risk. In support of these defenses it was sought to be shown that deceased had full knowledge of the danger confronting him, and that he had been repeatedly warned.

Upon the first point it is sufficient to say that knowledge of the danger does not of itself constitute contributory negligence in law, and that it is for the jury to say whether knowing the danger the deceased used care and caution commensurate with the danger. This doctrine has been so often announced by this court that further citation is not now necessary. As was said in Cowie v. Seattle, 22 Wash. 659, 62 P. 121, and reiterated in Atherton v. Tacoma Ry. & Motor Co., 30 Wash. 395, 71 P. 39: 'The law does not require the plaintiff in an action for personal injuries to be absolutely free from any negligence whatever, in order to recover, for such a requirement would impose upon him a duty of exercising extraordinary care and prudence, which is not the standard by which his negligence is measured. All the law requires of the plaintiff in such cases is the exercise of ordinary care under the circumstances surrounding him, and this he may do, although he may be guilty of some slight negligence in the broadest sense of that term.'

Upon the question of the deceased being warned as to the danger, this under the circumstances developed was a question of fact for the jury. Three instances are relied upon by appellant. One was by a foreman named Jacobs, who testified he warned deceased of danger from the falling wall in the presence of the other foreman, Shawgo. This conversation is denied by Shawgo. The second warning relied upon was from Stephenson, the superintendent of the work. Respondent produced a witness who testified that on the morning of the accident Stephenson's attention was called to a crack in the wall when a large rock rolled down the slope against it, and that Stephenson told them to keep on working, that the wall was in no danger of falling. The third warning was from the city engineer, who says he asked Blair if he did not think he was in a dangerous position, standing with one foot on the wall and the other on the fill, and warned him to be careful of the wall, as he did not think it was very safe. He further testifies that he did not think the wall was going to fall, that the principal danger he had in mind was the falling of large rocks weighing from 500 to 1,000 pounds from the top of the wall, but that, outside of the danger of falling rocks, he thought Blair was in a reasonably safe position, and that he did not anticipate the wall itself would fall; if he had, he would not have allowed Blair to stand where he did.

It will thus be seen that the jury could have found the first two warnings were not given, and that the third was of a danger which did not contribute in any way to the cause of Blair's death, and hence, if given, could not defeat a recovery, based upon a danger the witness himself says he did not anticipate.

As to the defense of assumption of risk, while it is true that an employé assumes all the dangers inherent in the work and that are ordinarily incident thereto, it does not follow that he assumes the risk of his employer's negligence. The risks assumed by the servant are those and those only that are obvious after the master has discharged the duty imposed upon him by law of using ordinary care and prudence in making the servant's work reasonably safe, and in providing him with a reasonably safe place in which to do that work. This is the rule as announced by us in Howland v. Standard Mill & Logging Co., 50 Wash. 34, 96 P. 686, where it was said: 'But it is not the rule that a servant...