Boyer v. Northern P. Coal Co.
| Decision Date | 18 March 1902 |
| Court | Washington Supreme Court |
| Parties | BOYER v. NORTHERN PAC. COAL CO. |
Appeal from superior court, Spokane county; Frank Rudkin, Judge.
Action by Michael Boyer, by Frances Boyer, his guardian ad litem against the Northern Pacific Coal Company. From a judgment for defendant, plaintiff appeals. Reversed.
Henry J. Snively and Robertson, Miller & Resenhaupt, for appellant.
B. S Grosscup and Jas. F. McElroy, for respondent.
Michael Boyer, a minor, brought this action, by his guardian, against the Northern Pacific Coal Company, to recover for injuries received while in the employ of the defendant, engaged in the operation of its coal mines at Roslyn, Yakima county. The complaint alleges that, through the negligence of the defendant in not providing suitable cars and brakes therefor and tracks and other appliances, and in not informing plaintiff of the dangers of his employment, the plaintiff while engaged in helping to haul coal out of defendant's mine, was injured between the bumpers on two coal cars. The defendant, after denying the allegations of negligence, pleaded contributory negligence on the part of plaintiff. When the cause was on trial, after plaintiff had rested his case, defendant challenged the sufficiency of the evidence to show any negligence on the part of the defendant, and moved the court to grant a nonsuit. This motion was sustained, and the action was dismissed. Plaintiff appeals.
It appears from plaintiff's evidence that he was employed by defendant on April 18, 1898. He was then 13 years and 7 months of age. His employment at that time was in the capacity of trapper, his duty being to open and close the doors leading from one room to another in the mine. He was kept at this work for some five or six months, when the doors were fastened open, and he was then directed to assist the drivers of mules used in drawing coal from the mine in cars, his duties in this employment being to hold down the brakes on the cars. The evidence does not make it clear how long he was engaged in this employment before the injury. He was, however, two or three days before the injury, directed by the superintendent to assist one of the drivers with a wild mule. At first he was afraid of the mule, and hesitated about going, but the superintendent insisted, and he went. He was directed to hold down the brakes on the two rear cars when the mule should go too fast. It appears that a load for the mule consisted of three cars coupled together, these cars being about six feet long, three feet wide at the top, and two and a half feet at the bottom; that the speed of the mule and the cars was regulated by the use of the brakes. The evidence is somewhat confused as to the location of these brakes on the cars. Some of the witnesses say they were operated from the side; some say at the rear end, and some say at the front. At any rate, the plaintiff testified that he was required to stand upon the rear bumper to operate the brake of the rear car; that on the day of the injury this brake was so defective that he could not operate it at the rear of the car, and that he was therefore compelled to get in between the two rear cars to operate the brakes; that the mule was going fast, and the driver directed him to set the brakes, and that, while he was in the performance of this duty, the mule jumped sidewise and jerked the first car off the track, causing the two rear cars to throw him between the bumpers thereof, which crushed his foot. He also testified that he was not warned of the danger of his position, nor of the dangers incident to the employment. The evidence clearly showed that the employment was dangerous. The only question presented here is whether the evidence of the plaintiff, assuming it to be true, shows any negligence on the part of the defendant. It is insisted by the appellant that negligence is shown in four particulars: (1) Negligence in employing a wild mule to haul the cars; (2) negligence in permitting its cars, especially the brakes, to be out of repair; (3) negligence in not providing lines for controlling the mule; (4) negligence in not instructing appellant of the dangerous character of the work. We shall not discuss these elements of negligence separately. We assume, for the purposes of this appeal, that the evidence of the plaintiff, uncontradicted as it now stands, is true in these particulars, viz., that the mule employed to draw the cars was not accustomed to this sort of work, and, as plaintiff says, 'would jump sidewise and kick and run'; that plaintiff was afraid of the mule, and objected to working with him, until the superintendent urged him to do so; that, on account of the defective brake in the rear car, he was obliged to get between the two rear cars to perform his duty, and that this was a dangerous position; that the plaintiff was a boy 14 years of age at the time, and was given no warning of his danger. The argument of respondent is based principally upon the theory that it was not necessary for...
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...v. Spokane Street Railway Co., 23 Wash. 325, 63 Pac. 506, 54 L.R.A. 184 (boy of ten years and nine months); Boyer v. Northern Pacific Coal Co., 27 Wash. 707, 68 Pac. 348 (boy of thirteen years and seven months of age, on the question of the assumption of risk). * * * * * * * * 'The courts o......
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