Harvey v. Hacker

• Decision Date: 11 March 1902
• Citation: 27 Wash. 582,68 P. 191
• Court: Washington Supreme Court
• Parties: CHRISTIANSON v. PACIFIC BRIDGE CO. [1]

68 P. 191

27 Wash. 582

CHRISTIANSON v. PACIFIC BRIDGE CO. ^[1]

Supreme Court of Washington

March 11, 1902

Appeal from superior court, King county; Arthur E. Griffin, Judge.

Action by John Christianson against the Pacific Bridge Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Piles, Donworth & Howe, for appellant.

Walter S. Fulton and John B. Hart, for respondent.

HADLEY J.

On the 16th day of April, 1900, the appellant, a corporation, was engaged in constructing a pipe line from Cedar Lake, in King county, Wash., into the city of Seattle; the same being part of what is known as the 'Cedar River Water System.' The respondent was in the employ of appellant as a laborer. A large ditch had been dug, along and through which said pipe line was being laid. The evidence is not harmonious as to the depth of the ditch. The testimony of some of the witnesses as to the depth placed it from 7 to 8 feet, and that of others from 11 to 12 feet. The ditch was of sufficient width at the bottom to admit a pipe about 4 feet in tickness, and still leave a small space along either side,--perhaps 2 feet. The pipe was also 4 feet high. The ditch was wider at the top than at the bottom, the sides being made with a slope toward the bottom. At a point near Thirteenth and Massachusetts streets in the city of Seattle the pipe had been placed in its proper position in the ditch, but had not yet been covered with earth. Respondent and another were engaged in shoveling loose dirt which had been thrown out of the ditch to the side of the pipe. The dirt so thrown in was being tamped or packed by another workman at the lower sides of the pipe so as to hold it more securely in its place until the heavier work of filling the entire ditch should be done. The upper portion of the sides of the ditch consisted of a hard, gravelly formation, resembling cement or concrete, but near the bottom the formation was sandy. Respondent and other witnesses testify that while he was engaged in shoveling the earth as aforesaid the foreman of appellant in charge of the work at that place came along and said to the respondent, in effect, that the process of shoveling dirt from above for tamping purposes was too slow, and directed respondent to get down into the ditch, and by the use of a pick to dig out the soft earth from the side of the ditch at the bottom; adding that in that manner one man could do as much work as two could do as they were then working. It was further testified that respondent immediately complied with the direction of the foreman, and got down into the ditch and began digging with his pick from the hard, gravelly formation at the top of the ditch, endeavoring to loosen it and drag it into the ditch, but that the foreman informed him he did not intend for him to dig from the top, and then went down into the ditch himself, took the pick from the hands of respondent, began digging the soft sand from the side of the ditch at or near the bottom, by way of showing respondent how he desired it done, and then handed the pick back to respondent, with the direction that he should dig as he had been shown; remarking at the time that the soft earth at the bottom was much better for tamping purposes than the harder formation respondent had endeavored to dig from the top. It was further testified that the foreman then went away to look after some other part of the work, and that respondent continued to dig as he had been directed; and respondent himself testified that, before leaving, the foreman assured him that the top was solid and would not cave in. Respondent continued to dig at the place for 10 or 15 minutes, when a mass of earth broke away from the side wall of the ditch and fell upon him, throwing him back against the pipe and rendering him entirely helpless. The earth was removed from about him by his fellow workmen, and he was taken out in an unconscious condition; having received injuries about the back and hip, and probably others. This suit was brought for the purpose of recovering damages from appellant on account of said injuries. The cause was tried before a jury, and a verdict returned in favor of respondent in the sum of $1,950. Appellant moved for a new trial, which was denied, and thereupon judgment was entered upon the verdict of the jury for the full amount thereof. From said judgment this appeal was taken.

There is no dispute as to the manner in which the accident itself occurred, or as to the fact that respondent received some injuries. The serious character of the injuries as claimed by respondent is contested by appellant, and appellant also denies that the respondent was directed by the foreman to get into the ditch. The foreman himself testified that he did not so direct respondent, but, upon the contrary, says he told him to get out of the ditch, when he saw him there, and warned him that he was in danger. In this he is supported by the testimony of at least one other witness.

It is first assigned as error that the court denied appellant's challenge to the legal sufficiency of the evidence at the close of respondent's testimony; and it is further assigned that the court erred in denying appellant's motion for a nonsuit, and also in refusing appellant's request at the close of respondent's evidence that the court should instruct the jury to return a verdict for the appellant. It is insisted by appellant that the evidence introduced in behalf of respondent showed that his injury was caused by respondent's undermining the side of the ditch causing the upper earth to fall upon him; that the risk of doing such an act was one which he assumed; that his act was one of contributory negligence, defeating his right to recover, and it was immaterial whether the foreman told him to do such act or not. In considering these assignments of error, it must be conceded that respondent went into the ditch and did the work he was doing at the direction of appellant's foreman, since three witnesses so testified. It is argued that the danger was so obvious that any sane man would know that, if the wall of the ditch were undermined at the bottom, the top wall would cave in. It will be remembered that the space between the pipe, which was four feet high, and the side wall, was very narrow. In this narrow space respondent was digging. He had worked there 10 or 15 minutes. It is manifest he could not have dug a considerable amount of earth within that time, and under the particular circumstances. The evidence shows that he had probably dug under the side wall to a distance laterally of one foot and a half. The extent of the digging in other directions is not very clear. All the witnesses agree that the top portion of the side wall was composed of a very hard gravelly formation, resembling cement or concrete. Such a substance, it may not have been unreasonable to suppose would be supported to some extent by its lateral adherence, more than would have been the case with ordinary earth, and that it would not be as apt to break and cave as ordinary loose dirt, even though undermined to some extent. The danger can therefore scarcely be said to have been as obvious as it might have been had the wall been entirely composed of ordinary earth or of sand, as it was at the bottom. The evidence showed that respondent was not accustomed to digging in such trenches. He had not helped to dig this trench. His work had been that of assisting to put bands around the pipe after it was placed in the ditch. But he had been directed to shovel earth as aforesaid for a time before the accident occurred. It cannot be said that he was as chargeable with knowledge of the nature of the soil there, as if he had assisted in digging the ditch at that point, or as if his attention had been specially directed to the nature of the formation. For the purposes of this discussion, it must be considered that the foreman directed respondent to work there, showed him just where and how he was to work, and assured him that there was no danger of the top wall breaking by reason of digging as he was directed. Under such circumstances, the appellant, through its foreman, was chargeable with knowledge of the nature of the soil and of the attendant danger. The wall of the ditch had previously caved in, and at a point not far from where respondent was working, but it appears that respondent did not know of it. A witness experienced in work of that character testified that the walls should have been 'shored up,' or braced by timbers. The danger was, however, not so obvious to one with respondent's lack of experience, and who had been engaged at other work, that it may be said, as a matter of law, that he had no right to rely upon the foreman's direction and assurances, and that he assumed the risk. In Laporte v. Cook (R. I.) 42 A. 519, and employé of a city was digging in a trench 6 1/2 feet deep, as directed by a boss. The bank caved in and injured him. He had been working in the trench but a short time, and did not know of the peculiar character of the soil; nor did he know what the boss knew,--that the bank of the trench had previously caved in in other places. It...