Hilgar v. City of Walla Walla

• Citation: 50 Wash. 470,97 P. 498
• Parties: HILGAR v. CITY OF WALLA WALLA.
• Decision Date: 03 October 1908
• Court: United States State Supreme Court of Washington

97 P. 498

50 Wash. 470

HILGAR v. CITY OF WALLA WALLA.

Supreme Court of Washington

October 3, 1908

Appeal from Superior Court, Walla Walla County; Thos. H. Brents Judge.

Action by Hattie Hilgar against the city of Walla Walla. From a judgment for plaintiff, defendant appeals. Affirmed.

Oscar Cain and John C. Hurspool, for appellant.

Garrecht & Dunphy, for respondent

FULLERTON J.

In January, 1907, the city of Walla Walla was engaged in putting in a pipe line for the purpose of conveying water from the source of supply down to the city. A large ditch had been dug in which to lay the pipe, which, at the place of the accident hereinafter mentioned, was some 7 feet in depth. At that place, also, it was desired to put a fork in the pipe line and to that end the ditch had been forked leaving a tongue of earth between the fork, which ranged in width from a few inches at the point of junction to 4 or 5 feet at a point some 60 feet therefrom. In laying the pipe it was found necessary to remove this tongue of earth, and workmen under the direction of a foreman were placed at that duty. The method adopted was to cut it off into sections, undermine the section on one side, push it over, and throw the crumbled earth from the ditch. One such section, some 10 feet in length, had been thrown down, and the workmen were engaged on the second section when it fell, crushing and killing William H. Hilgar, the husband of the respondent, and the person for whose death she sues in this action.

The evidence concerning the surroundings and the conditions immediately preceding and at the time of the accident is conflicting. That most favorable to the respondent's contention, and which the jury must have believed in order to reach their verdict, tended to show that Hilgar was not a part of the crew who were originally put to work removing the earth, but that he was connected with the work of laying the pipe, and came to the ditch at the foreman's call after the first section had been thrown down, and after an unsuccessful effort had been made to throw down the second that he was instructed to take a pick and undermine at a particular place; and that while he was doing so the earth fell on him and crushed him. The evidence also tended to show that the section they were attempting to throw down was too long to be bandled with safety, unless braced or otherwise made secure while the process of undermining was being carried on, and that everything was done under the direct supervision of the appellant's foreman, who stood on the tongue just beyond the end of ...