French v. First Ave. Ry. Co.

• Decision Date: 21 February 1901
• Citation: 63 P. 1108,24 Wash. 83
• Court: Washington Supreme Court
• Parties: FRENCH et al. v. FIRST AVE. RY. CO.

63 P. 1108

24 Wash. 83

FRENCH et al. v. FIRST AVE. RY. CO.

Supreme Court of Washington

February 21, 1901

Appeal from superior court, King county; E. D. Benson, Judge.

Action by Maggie French and others against the First Avenue Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Struve, allen, Hughes & McMicken, for appellant.

Brady &amp Gay, for respondents.

DUNBAR J.

This action was brought by the widow and children of Walter H French, deceased, who was killed while in the employment of the appellant, the First Avenue Railway Company. The complaint alleges the employment by the defendant as an engineer in its power house; that the said French was required to work in an unsafe place; that the defendant had negligently and carelessly allowed the platform around the winder wheels in its power house to remain unfinished, open and exposed, and without any protection, and without light or signal to indicate danger; that it had failed to provide rails or guards of any kind around the wheels; that it failed to provided proper light where the said French was required to work, and had failed to provide said French with any lamp for use in the prosecution of his work. It is alleged that all of these defects, omissions, and neglects, which were the principal defects, omissions, and neglects pleaded, were known to the defendant, and unknown to the said French; that, while engaged in the performance of his duties as engineer, and unaware of danger, and without any fault or neglect on his part, and on account of the negligence of the defendant, the said French slipped, fell and was thrown into the winder wheel in the said engine room, and received the injuries from which he died. Upon the trial of the cause the jury rendered a verdict in favor of the plaintiffs for $10,000. Judgment was entered, and appeal taken to this court. At the close of plaintiffs' testimony the appellant challenged the sufficiency of the proof, and moved the court that the cause be taken from the jury, and for judgment for the defense, which motion was overruled.

We have carefully examined the testimony of the plaintiffs in this case, and from such examination, without considering the testimony of the defense, we are of the opinion that the motion should have prevailed. The law in relation to the liability of employers and the duty of the employé has been so often announced at length by this court that it would serve no good purpose to go into an extended investigation of that subject now. It was held in the case of Hoffman v Foundry Co., 18 Wash. 287, 51 P. 385, that the duty of the master to furnish the servant reasonably safe tools, machinery, and appliances with which to work, and the duty of the servant to exercise due care to avoid injury, are reciprocal obligations, and the duty of each is measured by the standard of ordinary care. And this is the universal rule. In consonance with this rule, we also held, in Olson v. Lumber Co., 9 Wash. 500, 37 P. 679, that a person employed to work about dangerous machinery assumes the risk of all apparent danger, and cannot recover for injuries received, although his employer has not instructed him as to his duties around the...