Dick v. Great Northern Ry. Co.

• Decision Date: 03 February 1942
• Docket Number: 28384.
• Citation: 121 P.2d 966,12 Wn.2d 364
• Parties: DICK v. GREAT NORTHERN RY. CO.
• Court: Washington Supreme Court

121 P.2d 966

12 Wn.2d 364

DICK v. GREAT NORTHERN RY. CO.

No. 28384.

Supreme Court of Washington, En Banc.

February 3, 1942

Action by John Dick against Great Northern Railway Company under the Federal Employers' Liability Act § 1, 45 U.S.C.A. § 51 to recover for injuries allegedly sustained as a result of defendant's negligence by plaintiff while employed as a longshoreman by defendant at its dock in the city of Seattle. From a judgment in favor of plaintiff, its motions for judgment notwithstanding the verdict and for new trial having been denied, defendant appeals.

Judgment reversed and cause remanded with directions.

MAIN BLAKE, JEFFERS, and DRIVER, JJ., dissenting.

Appeal from Superior Court, King County; Howard M Findley, Judge.

Edwin C. Matthias and Charles S. Albert, both of Seattle, for appellant.

Koenigsberg & Sanford, of Seattle, for respondent.

MILLARD Justice.

This action was instituted under the Federal Employers' Liability Act, U.S.C.A., Title 45, § 51, April 22, 1908 chapter 149, § 1, 35 Stat. 65, to recover for personal injuries alleged to have been sustained, as a result of defendant's negligence, by plaintiff longshoreman February 25, 1939, while employed by defendant at its dock in the city of Seattle. By answer defendant denied negligence on its part and pleaded affirmative defenses of contributory negligence and assumption of risk. Trial of the cause to the court sitting with a jury resulted in verdict of two thousand dollars in favor of plaintiff. From judgment entered on the verdict, motions for judgment notwithstanding the verdict and for new trial having been denied, defendant appealed.

Counsel for appellant contend that two instructions given over objection were prejudicially erroneous. By one instruction the court submitted to the jury, as a separate and independent ground of negligence, alleged failure to furnish a reasonably safe place to work, after the issues had been framed by the court and counsel to exclude it as such ground of negligence. By a second instruction recovery was permitted if appellant was negligent 'in one or more respects' charged in respondent's complaint, when the three grounds of negligence upon which the action is bottomed are dependent each upon the other.

Respondent alleged in his complaint that after stowing cargo in a box car of appellant he and another employee endeavored to close the car door which jammed; that when they attempted, by the application of more than usual physical strength, to close the door the door was thereby released, respondent lost his balance and slipped on the surface of the platform from which cargo was loaded into the box car and that in endeavoring to stop his fall he extended his left arm and the box car door closed against the fingers of his left hand, which necessitated amputation of a portion of the second and third fingers of that hand. Respondent alleged, as follows, that appellant was negligent in the following respects:

'(a) In failing to furnish a reasonably safe place to work.

'(b) In furnishing a freight car with a door which was defective and out of repair.

'(c) In failing to keep said platform free of foreign substances which created a dangerous condition.

'(d) In failing to make proper and reasonable inspection of said freight car door and said platform.'

Appellant's motion to make the complaint more definite and certain by stating in what respect the freight car door was defective and out of repair, and in what respect appellant failed to furnish a reasonably safe place to work was denied. However, respondent's counsel having consented thereto, the court ordered the respondent to limit the general allegation of negligence '(a) In failing to furnish a reasonably safe place to work' by adding the words 'as specifically set forth herein,' thereby restricting the claims of negligence to a defective car door, foreign substances on the platform which created a dangerous condition and failure to make proper and reasonable inspection of the car door and the platform.

The first instruction of which appellant complains, and to which we referred above, informed the jury that respondent's complaint alleged that some of appellant's employees spilled, while transporting same across a certain platform meal from containers on to the platform which meal became wet and thereby rendered the platform slippery; that respondent in closing the door of the freight car, in which he had been stowing cargo, by reason of the defective condition of the door and the slippery platform, was injured; and that respondent alleged that the appellant was negligent 'in the following respects:' The instruction then quoted the four items of negligence charged in appellant's complaint prior to its amendment. In other words, the court failed to instruct the jury that the words 'as specifically set forth herein' had been added to the charge of failure to furnish a reasonably safe place to work, which limited the issues to three specific things: (1) Defective car door, (2) foreign substances on the platform creating a dangerous condition, and (3) failure to make proper and reasonable inspection of the door and platform. That is, the jury...