Etheridge v. Gordon Const. Co.

• Decision Date: 20 February 1911
• Citation: 113 P. 639,62 Wash. 256
• Parties: ETHERIDGE v. GORDON CONST. CO. et al.
• Court: Washington Supreme Court

113 P. 639

62 Wash. 256

ETHERIDGE v. GORDON CONST. CO. et al.

Supreme Court of Washington

February 20, 1911

Department 2. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by Frank S. Etheridge against the Gordon Construction Company and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Kerr & McCord, for appellants.

Frank E. Green, for respondent.

MORRIS J.

Appeal from a judgment awarding respondent damages for personal injuries sustained while in the employ of appellants. On November 16, 1909, appellants were engaged in taking down the Monitor & Merrimac building upon the grounds of the A. Y. P Exposition at Seattle. The building was not being wrecked or demolished, but was being taken apart for the purpose of shipping its constructural parts to Denver, to be there again assembled and erected. On the morning of the injury respondent was directed by one Perry, the general foreman, to assist a fellow workman named Evarts in removing one of the purlins which supported and braced the trusses. The purlin was taken down and dropped to the ground, and Perry then directed respondent to climb out on one of the trusses and remove a drift bolt, and while he was preparing to do so, and in a few minutes after removing the purlin, the columns supporting the truss swayed and the building collapsed and fell to the ground, carrying respondent with it, and inflicting the injuries complained of. Appellants contend that the removal of the purlin was the direct cause of the collapse of the structure, while it is the contention of respondent that the structure fell because of insufficient bracing. So far as our review of the case is concerned, it is immaterial which theory be the true one, since there was evidence sufficient to support the verdict upon either theory. It appears that the previous afternoon respondent and Evarts were attempting to loosen one of the purlins, when they were told by a workman named Crowe that it was extremely dangerous to do so, and that they were in effect committing suicide, whereupon they desisted. There is much dispute in the evidence as to Crowe's place on the job, appellants calling him a foreman, while respondent's contention is that he was only a fellow workman. However that may be, the evidence justifies the finding that Evarts and respondent were directed on the morning of the injury to take down this purlin, and that they removed it under orders from Perry, the general foreman, who in ordering them to do so was following out the general plan adopted by appellants in the doing of the work. Perry denies that he gave orders to remove this purlin, but we cannot say from the testimony that the jury were not justified in finding, as contended by respondent, that he did; and, if they did so believe, then it was for the jury to say, admitting the warning given by Crowe the previous day, whether, in acting in obedience to such orders by Perry, Evarts and respondent were doing an act so hazardous and dangerous as to preclude a recovery. Withiam v. Tenino Stone Quarries, 48 Wash. 127, 92 P. 900. This disposes of the defense of contributory negligence and assumption of risk as questions of law, and of the error asserted by appellants in failing to grant judgment notwithstanding verdict.

The remaining assignments go to instructions given, and the refusal of the court to give others offered by appellants. The first line of instructions objected...