Campbell v. Jones

• Decision Date: 03 June 1913
• Citation: 73 Wash. 688,132 P. 635
• Parties: CAMPBELL v. JONES et al.
• Court: Washington Supreme Court

132 P. 635

73 Wash. 688

CAMPBELL v. JONES et al.

Supreme Court of Washington

June 3, 1913

Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by Murdock Campbell against E. N. Jones and others. Judgment for plaintiff, and defendants appeal. Affirmed.

John M Bunn, of Spokane, for appellants.

W. H Plummer and Henry Jackson Darby, both of Spokane, for respondent.

PARKER J.

This is an action to recover damages for personal injuries claimed by the plaintiff to have resulted to him from the negligence of the defendants' foreman. A trial before the court and a jury resulted in judgment and a general verdict in favor of the plaintiff, from which the defendants have appealed. Upon a former trial of the cause in the superior court it was withdrawn from the jury upon the challenge of the defendants to the sufficiency of the evidence to sustain any verdict against them. This disposition of the cause by the superior court was upon appeal to this court reversed and remanded for a new trial as to these defendants, though it was affirmed as to the defendant the Chicago, Milwaukee & Puget Sound Railway Company. Our decision on that appeal is reported in 60 Wash 265, where a somewhat more detailed statement of the facts is made than is necessary here.

The evidence introduced upon the new trial in the superior court was in substance the same as upon the first trial. Contention is again made here in behalf of the appellants that the trial court erred in overruling the challenge to the sufficiency of the evidence to warrant recovery by respondent as against these appellants. A review of the questions involved in this contention would be little less than a repetition of what was said by us on the former appeal. We deem it sufficient to say that we adhere to the views there expressed, and conclude that the evidence was such as to call for the decision of the jury upon the question of appellants' negligence. Nor do we deem it necessary to say more than was said in that decision touching the question of the claimed relation of fellow servant existing between respondent and appellants' foreman.

It is further contended by counsel for appellants that the general verdict returned by the jury against the appellants should not be regarded as controlling the judgment, in view of the special findings in answers to interrogatories made by the jury, but that the latter established certain specific facts which are inconsistent with respondent's right to recover, which facts should control the judgment. It is insisted that for this reason the trial court erred in denying appellants' motion for judgment notwithstanding the verdict. The special findings made by the jury are as follows:

'(1) Did witness Lundin cause the rock in question to fall by stepping on a stick or kicking a stump? Answer: Yes.

'(2) Did witness Lundin shout a warning to the plaintiff and other men below him immediately after he saw the rock falling? Answer: Yes.

'(3) Did witness Lundin, before he went up the hill, tell the men below, the plaintiff among others, that he was going up to get wood for the fire? Answer: No.

'(4) Was the starting of the rock purely accidental? Answer: Yes.'

Appellants were contractors engaged in railway construction work for the Chicago, Milwaukee & Puget Sound Railway Company. Respondent was in their employ as a laborer. Lundin was foreman for appellants over respondent and other laborers. Respondent was injured by the falling of a rock, which was dislodged by Lundin from a steep hillside, and which fell upon respondent. The general verdict necessarily rests upon the theory of Lundin's negligence in dislodging the rock, and must control the judgment unless it be held that the special findings, especially the fourth above quoted, are controlling upon the question of Lundin's negligence. It is urged that the finding that the starting of the rock was 'purely accidental' is in effect a specific finding that Lundin was not negligent.

Our attention is called to authorities which seem to recognize the word 'accident' or 'accidental' as meaning the happening of an event without fault or negligence on the part of any one. There are no doubt connections in which the use of the word would have such a meaning, but it is often used as expressing the thought of an event occurring without design or purpose, or unintentionally on the part of any one. Given the latter meaning, it would not negative the thought of negligence on the part of one whose physical act the occurrence followed. Neither is it infrequent to hear reference to an occurrence as an 'accident,' even though the speaker knows it was the result of some one's negligence. Among the definitions in the Standard Dictionary we find the following:

'Accident--1. Anything that happens; an occurrence; event. Especially: (1) Anything occurring unexpectedly, or without known or assignable cause; a...