Crabb v. Wilkins

• Court: Washington Supreme Court
• Writing for the Court: DUNBAR, J. RUDKIN, C.J.
• Citation: Crabb v. Wilkins, 59 Wash. 302, 109 P. 807 (Wash. 1910)
• Decision Date: 08 July 1910
• Parties: CRABB v. WILKINS.

109 P. 807

59 Wash. 302

CRABB v. WILKINS.

Supreme Court of Washington

July 8, 1910

Department 2. Appeal from Superior Court, Adams County; H. W. Canfield Judge.

Action for personal injuries by Dewey Crabb, by guardian ad litem against W. E. Wilkins. Judgment for defendant on a directed verdict, and plaintiff appeals. Reversed.

W. W Zent and John M. Cannon, for appellant.

Lovell & Davis, for respondent.

DUNBAR J.

This is an action for damages for personal injuries. On March 17 1909, respondent owned a well drill and appliances, and on that date and prior had been engaged in drilling a well in the town of, or near, Othello, Adams county, Wash., at a point close to a street about 400 feet from the public school of that place, and on the usual and customary route of travel for school children attending that school in going to and returning from the post office. This statement of the case is made by the appellant, and is criticized by the counsel for the respondent as not being a correct statement of the case, and it is insisted that the testimony does not show that the well-drilling outfit was on the usual and customary route of travel for school children coming to that school. But an examination of the record convinces us that the statement of the appellant is substantially correct, as shown by the testimony of Dewey Crabb on page 23 of the record, where he stated that in going from the schoolhouse to the post office he would walk within 10 feet of the well-drilling outfit, that the other boys in going from the schoolhouse to the post office would walk within the same distance, and that they made a trip to the post office from the schoolhouse every day. It also appears that there was no other drill using explosives within half a mile of the place. In making one of these trips on March 17, 1909, during the noon recess, and in returning from the post office, the appellant, Dewey Crabb, a boy 10 years old, in company with three other boys, found four dynamite caps on the ground, about 25 feet from the drill. They put these caps in their pockets, took them to the schoolhouse, and exploded two of them, whereby the appellant's hands were both very badly mangled. Some of the fingers were blown off and others were injured, and there was only one finger on each hand that was left without injury. The testimony of W. E. Wilkins, the respondent, on behalf of the appellant, was to the effect that he kept these caps in a tool box or chest, that the drilling machine was inclosed only for the purpose of protecting it from the weather. It does not appear from the testimony that it was inclosed so that an entrance to it was not available to any one passing by.

Upon the close of the plaintiff's testimony, motion was made by the defendant to instruct the jury to bring in a verdict for the defendant, for the reason that the proof offered by the plaintiff was insufficient; that it did not show a relationship between the master and the servant, nor did it show that the injury to the plaintiff was the direct effect of the negligence of a servant acting within the scope of his employment. An argument of considerable length was made before the court by both the attorney for the respondent and the attorney for the appellant, and the court after taking the matter under advisement, finally reached the conclusion that there was sufficient testimony to show the injury, that there was no showing of contributory negligence on the part of the...