Jorgenson v. Crane

• Decision Date: 26 July 1915
• Docket Number: 12434.
• Citation: 150 P. 419,86 Wash. 273
• Parties: JORGENSON v. GRANE.
• Court: Washington Supreme Court

150 P. 419

86 Wash. 273

JORGENSON v. GRANE.

No. 12434.

Supreme Court of Washington

July 26, 1915

Department 2. Appeal from Superior Court, King County; Walter M. French Judge.

Action by Herbert D. Jorgenson, by his guardian ad litem, against Charles C. Crane. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

Green &amp Chester, of Seattle, for appellant.

Palmer & Askren, of Seattle, for respondent.

FULLERTON J.

In October, 1912, the respondent Crane, acting under a contract entered into with the proper authorities of school district No. 1 in King county, graded the school grounds surrounding the buildings known as the Ravenna school. In the performance of the work he used, in moving earth from one part of the grounds to another, implements commonly known as wheeled scrapers. Roughly described, these were ordinary scrapers swung under two-wheeled trucks; the trucks having a tongue similar to an ordinary wagon tongue. The Ravenna school was a school for the minor grades, and school was regularly held therein during the progress of the work of grading. About the middle of October, the contractor temporarily suspended work, leaving one of the wheeled scrapers on the school grounds without locking or fastening it in any manner, and in such a condition that it could be hauled about over the school grounds and played with by the pupils in attendance on the school. On one part of the school grounds was a somewhat sharp incline, and in playing with the scraper the children would haul it to the top of this incline, when as many as could would get into the scraper pan, others would take charge of the tongue, and still others push the scraper down the incline. In one of such trips the plaintiff, who was then 6 1/2 years old, attempted to 'hop' into the pan between the wheels after the scraper was put in motion. But just as he had started the children holding up the tongue dropped it to the ground which caused the scraper to swerve from its course, strike and throw the plaintiff down in front of one of the scraper wheels, which passed over his thigh, causing him severe and painful injuries. This action was brought by the plaintiff, through his father as his guardian ad litem, to recover in damages for the injuries suffered. The cause was tried by the court sitting without a jury. At the conclusion of the plaintiff's testimony, the defendant moved for a dismissal on the ground that no cause of action had been proven. This motion the trial court granted, entering a judgment of dismissal from which this appeal is prosecuted.

We are of the opinion that the trial judge reached an erroneous conclusion as to the legal effect of the facts proven. If the wheeled scraper was an appliance with which it was dangerous for...