Gustafson v. Seattle Traction Co.

• Decision Date: 09 April 1902
• Court: Washington Supreme Court
• Parties: GUSTAFSON v. SEATTLE TRACTION CO.

68 P. 721

28 Wash. 227

GUSTAFSON v. SEATTLE TRACTION CO.

Supreme Court of Washington

April 9, 1902

Appeal from superior court, King county; O. Jacobs, Judge pro tem.

Action by John B. Gustafson against the Seattle Traction Company. From a judgment for plaintiff, defendant appeals. Reversed.

Preston, Carr & Gilman, for appellant.

Brady &amp Gay, for respondent.

REAVIS C.J.

Action for damages for personal injuries. The superintendent of the defendant street railway company was driving piles in repairing the track of the street railroad. The pile driver was so constructed that the gins (that is, the upright pieces between which the hammer plays when the driver is in operation) could be raised and lowered. They were built upon a fulcrum about the center of the car. When the driver was removed from place to place, the gins were turned down, so as to lie lengthwise of the car. When the driver was in operation, the gins were turned so as to stand in an upright position. The car was moved from place to place on the track by attaching to it a car with an electric motor. The driver could be raised or lowered by moving on an axle or channel pin. It was about 33 feet in length, 11 feet below the axle or channel pin, and 22 feet above. The hammer weighed about 2,100 pounds. In the end of the car was placed a block with pulleys. There was also another block with pulleys fastened to the bottom of the pile driver. Through these pulleys passed a rope, of which one end was left free and extended for some distance. The superintendent desiring to remove the pile driver from where a pile had been driven to the opposite side of the track, it was necessary to lower the gins so that they could pass underneath a trolley wire which extended some distance above the level of the track. The hammer was attached to the top of the gins, and left in that position. The blocks and tackle were rigged to the lower end of the gins. The superintendent directed the plaintiff and five other men to take hold of the fall which extended from the blocks, so as to steady the gins. While the gins were being lowered, the rope slipped or was pulled from the hands of the men, and the gins fell rapidly, taking the rope with such rapidity that plaintiff's foot or leg became entangled in it; and he was thrown a considerable distance, and sustained the injuries alleged in the complaint. The verdict was for the plaintiff.

1. The first error claimed by appellant is the denial of defendant's motion for a nonsuit at the conclusion of plaintiff's testimony, and for dismissal at the conclusion of trial. The material conflict in the testimony was as to the ability of the five men to hold the rope which they were ordered to take by the superintendent, and let the gins down slowly. The testimony on the part of the plaintiff tended to show that the men holding the rope were not able to prevent the rapid falling of the gins. There was also some dispute in the testimony relative to the number of men who actually had hold of the rope. It was maintained by plaintiff that the easy and safe way to lower the gins was to first let down the hammer, and that there was risk in the method directed by the superintendent. We think the question of negligence on the part of the defendant was appropriately one for the consideration of the jury.

2. Counsel for defendant complain of part of an instruction given by the court as follows: 'It is the duty of a master to furnish to the servant reasonably safe and secure machinery and appliances in the performance of his work, and not to expose the servant to danger in the performance of his work.' But a careful examination of the whole instruction relative to the master's duty does not leave a prejudicial meaning in the expression 'not to expose to danger,' etc. The instruction, all together, fairly placed before the jury the duty of the master to provide reasonably safe machinery and appliances in the performance of the work. It, perhaps, may be said that the statement that the master ought not to expose the servant to danger in the performance of his work is correct, as an abstract legal statement; and, while not a happy expression to embody in an instruction, we do not think an inference was drawn from it that was injurious to the defendant.

3. The superintendent directed the plaintiff and his fellow workmen to take hold of the rope and lower the gins, and one important contention was whether the number of men who were ordered to take hold of the rope was sufficient to let the gins down in safety. There was testimony of the workmen on the part of the plaintiff tending to show that the number of men called to hold the rope was insufficient, and they were not able to carry out the direction. This evidence included an expression of opinion by these workmen, who were themselves familiar with the construction of the pile driver, and had participated in the attempt to perform the orders of the superintendent. Defendant had an expert witness (an engineer), who was given what purported to be the facts attending the operation of the pile driver and the accident, and who had made a mathematical calculation as to the ability of the number of men mentioned to properly control the rope, and the opinion given by the expert tended to sustain the contention of the defendant that there was sufficient force to manage the rope. The court, on the submission of the cause, gave the following instruction 'There has been some expert testimony given in this case. The court instructs you that all evidence...