Holloway v. Savage

• Court: Washington Supreme Court
• Writing for the Court: CROW, J.
• Citation: Holloway v. Savage, 68 Wash. 614, 123 P. 1021 (Wash. 1912)
• Decision Date: 01 June 1912
• Parties: HOLLOWAY v. SAVAGE et al.

123 P. 1021

68 Wash. 614

HOLLOWAY v. SAVAGE et al.

Supreme Court of Washington

June 1, 1912

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by M. W. Holloway against George M. Savage and another partners as Savage & Nichols. From an order granting a new trial, plaintiff appeals. Affirmed.

Govnor Teats, Hugo Metzler, Leo Teats, and Ralph Teats, all of Tacoma, for appellant.

John A Shackleford and Kerr & McCord, all of Seattle, for respondents.

CROW J.

Action by M. W. Holloway against George M. Savage and W. R. Nichols copartners, to recover damages for personal injuries. The jury returned a verdict for $15,000, upon which judgment was entered in plaintiff's favor. Thereafter the trial judge made and entered an order granting a new trial, from which plaintiff has appealed.

Appellant, an employé of respondents, was engaged as foreman in the work of installing certain machinery, including a large flywheel, about 10 feet in diameter. One Cummings, respondents' chief engineer, superior in rank to appellant, directed appellant to delay the work until he (Cummings) could construct a crane to be used in placing the wheel. This crane, which was built under the orders of Cummings, without assistance or suggestion from appellant, consisted of two parallel rows of heavy upright timbers capped with horizontal timbers. These horizontal timbers were parallel, and about 18 or 20 feet apart. On each of them were two iron rails, upon which a carriage was to pass back and forth. The carriage consisted of two heavy parallel timbers so framed as to leave a space of about 6 inches between them. Each end of the carriage rested upon a short crosspiece, to which it was bolted at right angles; sheet metal being attached to the underside of the crosspieces. These crosspieces then rested upon the iron rails, and were to be moved back and forth by using small rollers. The carriage, from which a half segment of the heavy flywheel was suspended, could be readily moved to and fro upon the crane without danger. Appellant alleged that respondents were negligent in failing to provide him a safe appliance with which to work, or a safe place in which to work, in that they failed to attach flanges or other suitable appliances to the ends of the carriage, so that it could not slip from the crane, if subjected to a lateral strain. Without going into details, it may be stated that during the progress of the work it was subjected to a sudden lateral strain; that it slipped from the crane and fell upon appellant, causing the injuries of which he complains. At the time of the accident, appellant was directing the use of the crane, the placing of the flywheel, and the men doing the work. Cummings stood near by, but gave no orders. Respondents pleaded the defenses of contributory negligence and assumption of risk.

The motion for a new trial was predicated upon numerous grounds including irregularity of proceedings, misconduct of the jury and of the prevailing party, accident and surprise, excessive damages, insufficiency of evidence to sustain the verdict, and errors in law occurring at the trial. The order granting the new trial was general in its terms, failing to specify the particular ground upon which it was predicated. Appellant insists it was granted because the trial judge concluded the defense of assumption of risk should not have been submitted to the jury. The difficulty with this contention is that the record fails to show the ground upon which the motion was granted. It may have been that...