Imbler v. Spokane, P. & S. Ry. Co.

• Decision Date: 02 September 1931
• Docket Number: 23056.
• Citation: 164 Wash. 299,2 P.2d 895
• Court: Washington Supreme Court
• Parties: IMBLER v. SPOKANE, P. & S. RY. CO.

2 P.2d 895

164 Wash. 299

IMBLER v. SPOKANE, P. & S. RY. CO.

No. 23056.

Supreme Court of Washington

September 2, 1931

Department 2.

Appeal from Superior Court, Spokane County; Charles H. Leavy, Judge.

Action by John W. Imbler against the Spokane, Portland & Seattle Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Cannon McKevitt & Fraser, of Spokane, for appellant.

Robertson & Smith, of Spokane, for respondent.

BEELER J.

The respondent, a section hand in appellant's employ, brought this action under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover damages for personal injuries which he sustained by reason of being struck on the face by a track wrench while riding on one of the appellant's motorcars operated on its main railway line in the vicinity of Lamont, Wash. Respondent in his complaint charged that the appellant negligently failed to furnish him a safe place in which to work, in that the motorcar on which he was riding was unequipped with a tool box or an inclosure or fasteners so as to securely hold the tools and keep them from slipping and falling from the car; that appellant's foreman on the morning of the accident carelessly placed certain tools on the floor of the car and failed to fasten, secure, or guard them so as to prevent them from falling, and ran the car at an excessive rate of speed over an uneven and rough stretch of track, with the result that the wrench slipped off of the car and was propelled or thrown upward and against his face with great force, from which he sustained the injuries complained of.

The appellant denied all allegations of negligence and set up an affirmative defense in which it was alleged that the respondent assumed the risk of his employment. The cause was tried to the court and a jury resulting in a verdict in favor of the respondent. At proper times during the trial the appellant moved for a nonsuit, for a directed verdict, for judgment n. o. v., and for a new trial. These motions were denied, judgment entered on the verdict, and this appeal followed.

The first question presented for our consideration is whether respondent, as a matter of law, assumed the risk of injury. A review of the evidence is necessary to determine this question.

From the evidence the jury were warranted in finding that on the night of February 21, 1930, the appellant's foreman requested Imbler to return to work the next day. Accordingly on the following morning, the respondent reported for duty and found that the foreman had removed the motorcar, used in patrolling and inspecting the track and roadbed, from the shed or tool house to a point near the main line track. This car is approximately six feet long and four feet eight inches wide. Lengthwise through the center of the car is a seat box or platform about eighteen inches high from the floor of the car which incases the motor. This platform is used by members of the crew as a seat box while riding on the car. There is an opening at or near the center of the platform through which a lever projects which is used in operating the car. Extending from the base of the seat box or platform to the right edge of the car is a floor space about fourteen inches wide also running lengthwise of the car. The foreman had placed a crowbar, a broom, an axe, and the wrench on this fourteen-inch space at some time Before they started to use the car on February 22. The wheels on the right-hand side of the car are guarded by semicircular metal sheets about one foot long at the base and extending upward to approximately the same height as the flanges of the wheels. Both ends of this fourteen-inch space as well as the right side were unguarded, except that portion thereof occupied by the semicircular metal sheets.

The evidence further tended to establish that it was the duty of the foreman and not that of the respondent to place the tools on the work car; that Imbler took no part in placing the tools on the car; that it was the custom of railway companies in the Northwest to provide tool boxes or some method of securely fastening tools carried on motor cars similar to the one here used; that the foreman ordered the respondent to take a position on the platform or seat box behind the windshield and to keep a lookout for obstructions on the track and for oncoming trains; that the respondent was sitting with his legs alongside the platform, with his feet extending to within a few inches of the floor on which the tools were lying; that the top of his head or hat was approximately even with the top of the windshield; that the distance, vertically, from the place where the tools were lying to the point on his face where he was struck, was approximately five feet; that the foreman sat on the opposite side of the platform and operated the motorcar. In this position they ran the car a distance of some three or four miles east of Lamont, then changed the windshield to the other end of the car and started back over the same stretch of track; that about two miles west of Lamont the track extends through a rather precipitous rock cut with a ditch on either side thereof; that the track at this point was rough and uneven owing to the frozen condition of the roadbed. The respondent testified that in going over this portion of the track he felt the motorcar jerk, and that he glanced back, and while so doing was struck by the track wrench. This wrench is forty-two inches long and weights from thirteen to fourteen pounds and in some unknown manner was propelled or thrown through the air a distance of possibly five or six feet, striking the respondent.

The respondent admitted that he observed the tools at the time he got on the motorcar and at the time he and the foreman changed the windshield Before starting back to Lamont, but that while the car was running he gave no attention thereto, his attention being directed to the track ahead in order to determine whether it was clear of obstructions and approaching trains.

The question whether the respondent assumed the risk of injury as a matter of law, is governed by the decisions of the United States courts. At common law, as a general rule, the servant assumed the ordinary risks and hazards incident to his employment, which were apparent and obvious to one in the exercise of ordinary care. Unusual risks, or risks created by the negligence of the employer or his agents, are not assumed by the employee unless actually known to and comprehended by him, or so open and obvious as to raise a presumption of knowledge. The rule is clearly stated by the Supreme Court of the United States in the case of Chesapeake & Ohio Ry. Co. v. De Atley, 241 U.S. 310, 36 S.Ct. 564, 566, 60 L.Ed. 1016: 'According to our decisions, the settled rule is not that it is the duty of an employee to exercise care to discover extraordinary dangers that may arise from the negligence of the employer or of those for whose conduct the employer is responsible, but that the employee may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them.' See, also, Chesapeake & Ohio Ry. Co. v. Proffitt, 241 U.S. 462, 36 S.Ct. 620, 60 L.Ed. 1102; Morgan v. Ogden Union Ry. & Depot Co. (Utah) 294 P. 541; Covington .v Atlantic Coast Line R. Co., 158 S.C. 194, 155 S.E. 438; Port Angeles Western R. Co. v. Tomas (C. C. A. 9th Circuit) 36 F.(2d) 210; Howland v. Standard Milling & Logging Co., 50 Wash. 34, 96 P. 686; Blair v. Spokane, 66 Wash. 399, 119 P. 839; Arneson v. Grant Smith & Co., 120 Wash. 98, 206 P....