Broughton v. Oregon-Washington R. & Nav. Co.

• Decision Date: 29 March 1926
• Docket Number: 19507.
• Citation: 244 P. 558,138 Wash. 298
• Court: Washington Supreme Court
• Parties: BROUGHTON v. OREGON-WASHINGTON R. & NAV. CO.

244 P. 558

138 Wash. 298

BROUGHTON v. OREGON-WASHINGTON R. & NAV. CO.

No. 19507.

Supreme Court of Washington

March 29, 1926

Department 1.

Appeal from Superior Court, Benton County; Truax, Judge.

Action by Eva Lena Broughton, administratrix, against the Oregon-Washington Railroad & Navigation Company. From a judgment for defendant notwithstanding the verdict, plaintiff appeals. Affirmed.

See also, 241 P. 963.

Charles W. Johnson, of Seattle, and Phil. G Warnock, of Kennewick, for appellant.

Hamblen & Gilbert, of Spokane, and McGregor & Fristoe, of Prosser for respondent.

ASKREN J.

In May 1923, the Oregon-Washington Railroad & Navigation Company was engaged in the construction of a bridge across the Columbia river near Kennewick. In the progress of the work it became necessary to lower a truss about 2 feet on one of the piers. To do this it was necessary to raise the truss with a hydraulic jack, remove the blocking underneath, and then jack it down again. For this purpose a large hole was cut in the concrete, and in the preparation of this hole a series of holes were drilled therein. In drilling these holes a scaffolding was erected, which swung along the side of the pier 6 feet below the top of the pier and about 8 feet above the river. The scaffolding was composed of two long timbers approximately 6X8 inches, called 'needle beams.' On top of these needle beams were some six or seven short planks running crosswise, and which held the needle beams apart. On top of the short planks were placed lengthwise a number of long planks of approximately the same length as the needle beams, on which the workmen stood. The scaffolding was suspended by large ropes tied to the needle beams on either side, and fastened above to chords on the pier. It was found that the workmen using the compressed air hammer while on the scaffolds pushed the scaffolds away from the pier, so they were all drifted against it. This was done by causing the ropes upon which the scaffolds were swung to be placed farther in on the chords and at a slight angle, so that the weight of the scaffold would hold them tight against the pier. This was the customary method of handling the work along the different piers.

One Ted Broughton had been employed for some time by the defendant corporation in working on the bridge. On the 19th of May he was assisting in dismantling one of these scaffolds. The customary method of dismantling a scaffold was to first remove the long planks, upon which the workmen stood, then one by one remove the short planks, that were laid crosswise and fastened to the needle beams. One Brace was at work at one end of the scaffold, taking up the short planks, and Broughton at the other. The short planks extended over the side of the needle beams, so that, when the scaffold was swung against the pier, the ends of the short planks rested against it. When one end plank was removed by Brace, the end of the needle beam on which he was standing swung in against the pier, because the removal of the short plank which held the needle beam away from the pier caused it to be released. When Broughton released the plank on the end where he was standing, that end of the needle beam also swung in against the pier. Broughton fell into the water, and, although an attempt was made to rescue him, he was drowned.

Suit was brought against the defendant corporation, alleging that the action came under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and setting up as grounds of negligence that the company negligently permitted the swinging of the scaffold by means of ropes and forcing it out from the pier upon which decedent was working, and further that decedent had no way of knowing the condition of the scaffold, nor was he advised as to its dangerous condition; that the company was negligent in not providing adequate safeguards for his life in case of precipitation into the river.

A trial was had before a jury, which resulted in a verdict for plaintiff. The trial court, however, granted judgment notwithstanding the verdict, upon the grounds, first, that decedent was not employed in interstate commerce at the time of his death, and therefore the action could not be brought under the federal Employers' Liability Act; second, that the decedent assumed the risks incident to his employment. This...