Bundy v. Union Iron Works

• Decision Date: 08 April 1907
• Parties: BUNDY v. UNION IRON WORKS.
• Court: Washington Supreme Court

89 P. 545

46 Wash. 231

BUNDY v. UNION IRON WORKS.

Supreme Court of Washington

April 8, 1907

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by Roland A. Bundy against the Union Iron Works. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Post Avery & Higgins, for appellant.

Hamblin Lund & Gilbert, for respondent.

ROOT J.

Plaintiff brought this action for damages on account of personal injuries sustained by being caught upon a set screw in a collar on a revolving shaft in the boiler room of defendant's foundry. From a judgment in favor of plaintiff, this appeal is taken.

The shaft in question was situated about 14 or 16 feet above the ground floor, running north and south, and was attached to the west side of a row of posts composed of heavy 12 by 12 timbers. Respondent was assisting one Thoms, who had charge of the work of removing said shaft for appellant. Upon the shaft was a collar, fastened with a set screw, which projected about a quarter of an inch beyond the flanges of the collar. Some three feet below the shaft there were attached to the post certain arms extending outward in each direction, and upon those arms a temporary staging was built on the west side of the posts. Some feet above the shaft, and extending from one post to another, was a heavy beam. Plaintiff was directed to throw ropes over the top of this beam, near each of two of these posts, so that one end of each rope might be attached to the shaft, which it was desired to thereby take down, as appellant was remodeling that portion of the building. Plaintiff took one rope and climbed upon a ladder set against the side of what we will call the 'south' post, and threw the rope over the beam above, from the east side. He then climbed down and secured another rope, and carried his ladder to the next post to the north. Instead of placing his ladder against the side of this post and throwing over the rope from the east side in a manner similar to that which he had followed in the other instance, he went around to the west side of the post and climbed up, and, while standing upon the ladder or upon a plank or scaffolding resting upon the arms attached to the posts on the west side, leaned forward to throw the rope up over the beam from that side. In so doing his clothing came in contact with the set screw, and he was very seriously injured. Appellant urges (1) that there was a failure of proof as to defendant's negligence; (2) that plaintiff was guilty of contributory negligence; and (3) that he assumed the risk. We will consider the evidence with reference to contributory negligence.

It is urged by appellant that, inasmuch as the shaft and the collar were in plain sight, respondent was guilty of negligence in attempting to throw the rope while standing at a place where his body would likely come in contact with said shaft and collar, even though he could not see that the set screw was projecting. It is also urged that respondent was guilty of contributory negligence, in that he voluntarily selected a hazardous method of doing his work, when a perfectly safe one was available. Immediately to the east of the posts upon which the line shaft was attached was an open space, with nothing upon the floor or elsewhere to interfere with respondent's moving his ladder, handling his rope or climbing up alongside the posts so as to throw the rope over the beam. To the west of said posts the floor was partially occupied, and there were belts running from certain pulleys upon the shaft to machinery in other parts of the foundry, and a person standing upon the ladder against the post, or upon the scaffolding, would necessarily be brought near or against the shaft. While climbing the ladder upon the east side of the post, he would have the width of the post (12 inches) between the shaft and the place where the top of his ladder rested, and to reach the beam overhead there would be no occasion whatever to get near the shaft. Upon the trial of the case a large model was used and placed in evidence, and the same was brought to this court for our inspection. The evidence of the respondent himself, together with an examination of the model, shows plainly that the method adopted by the respondent in throwing the first rope over the beam was a perfectly safe one; that with his ladder upon the east side of the post it was practically impossible for him to come in contact with the shaft or set screw; that he was just as near the beam on that side as he would be on the other; that there was no rubbish, no belts, no shaft, nor anything else in the way of his adopting the same method in putting over the other rope; that, instead of following the same method, he undertook to put the second rope over from the west side, placing his ladder and himself in a position where, in throwing the rope, he would naturally lean against the shaft. He saw the shaft and the collar, and knew that they were rapidly revolving. He had worked for respondent for several months, and must have known that there was danger in coming in contact with a revolving shaft. No reason is given for his not putting over the second rope from the east side, as he had done with the first one.

It appears to us that the conclusion is irresistible that this unfortunate man voluntarily chose to do this work in a hazardous manner, when a perfectly safe method was open and known to him, a method which he had already tested but a few moments before. The proposition is thoroughly established by the courts that, where an employé voluntarily elects to perform a given service in a perilous manner, when a perfectly safe method is open and known to him, he is guilty of such contributory negligence as will defeat a recovery as against his employer. In this case plaintif...