Cole v. Spokane Gas & Fuel Co.

• Decision Date: 27 December 1911
• Court: Washington Supreme Court
• Parties: COLE v. SPOKANE GAS & FUEL CO.

119 P. 831

66 Wash. 393

COLE v. SPOKANE GAS & FUEL CO.

Supreme Court of Washington

December 27, 1911

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Wesley F. Cole against the Spokane Gas & Fuel Company. From a judgment for defendant, plaintiff appeals. Affirmed.

W. H Plummer and Henry Jackson Darby, for appellant.

Post Avery & Higgins, for respondent.

CHADWICK J.

Appellant was a stoker in the employ of respondent. He brought this action to recover compensation for injuries which he says resulted from respondent's negligence. The case is predicated upon the legal principle that it is the duty of an employer to provide the servant such safe and sufficient appliances or instrumentalities as are reasonably calculated to insure the safety of the servant, and to maintain them in a reasonable state of repair. Appellant was 43 years old at the time he was injured, and had performed common labor for many years. He had worked as a stoker for respondent from April 6, 1910, to December 21, 1910, the day he was injured. He with another carried coke along the line of series of retorts, taking it out of one and putting it into another as the process of manufacture required. The vehicle in which the coke was carried was an iron pan with two handles projecting lengthwise from the ends, so that a man could walk between them after the fashion of handling a wheelbarrow. While thus engaged appellant dropped the pan. It fell upon and fractured his ankle. The specific omission of duty on the part of the employer, as it is alleged, is this: That one of the handles of the pan gave way because some of the rivets were out of the handle, so that it had become loose, and but for this the accident would not have occurred. At the close of appellant's case the court took the case from the jury and thereafter entered a judgment in favor of defendant.

A careful review of the evidence convinces us that there can be no doubt of the correctness of the court's judgment. There is no evidence to sustain counsel's theory that the accident occurred because some of the rivets attaching the handle to the pan were out. Appellant's own testimony does not sustain this theory. He says that the righthand handle slipped in his hand, that he made a 'kind of a grab,' and that he 'grabbed for a new hold,' when he lost it altogether. Appellant had used the pan for some time before the accident happened, and it was used for two or three days thereafter. It is not shown by any evidence that the loss of the rivets in any way impaired the usefulness of the instrument. Appellant admits that his gloves were wet, and it is as likely or more likely from the evidence that the accident happened from this cause rather than any defect in the pan.

Or, if it be held that there was a defect, its character was such that plaintiff who was handling the pan many times a day would be charged with notice of it, as well as the...