Kluska v. Yeomans

• Decision Date: 25 August 1909
• Citation: Kluska v. Yeomans, 54 Wash. 465, 103 P. 819 (Wash. 1909)
• Court: Washington Supreme Court
• Parties: KLUSKA v. YEOMANS.

103 P. 819

54 Wash. 465

KLUSKA v. YEOMANS.

Supreme Court of Washington

August 25, 1909

Department 1. Appeal from Superior Court, Lewis County; Alonzo E. Rice Judge.

Action by John Kluska against W. C. Yeomans. Judgment for plaintiff and defendant appeals. Affirmed.

George Dysart and Hayden & Langhorne, for appellant.

Bates Peer & Peterson, for respondent.

FULLERTON J.

The respondent recovered a judgment against the appellant for personal injuries, and this appeal is taken therefrom. In his complaint the respondent alleged, in substance, that the appellant was engaged in the business of manufacturing and selling lumber at the town of Pe Ell, in this state, and owned and operated in connection with his business a line of railroad; that as a part of the equipment of his road the appellant owned an engine and certain logging trucks or cars which, at the time of the respondent's injury, he had transformed into gravel cars by connecting two of the trucks together with a reach or pole and laying on the trucks so connected planks and boards, forming a bed; that on November 17, 1906, the respondent was in the employment of the appellant as a common laborer, and was put to work on the gravel train, his duties being to assist in loading the train at one point of the road and unloading it at another under the direction of the appellant's foreman--it also being his duty, in order to facilitate the work, to board the cars and ride thereon from the place of loading to the place of unloading. The cause and manner of his injury he alleged in the following words: 'That on said 17th day of November, 1906, at about the hour of 11:30 o'clock in the forenoon of said day, plaintiff was working at his said employment of laborer for said defendant and had assisted in loading said train of cars aforesaid with gravel and dirt; that said train of cars were at said time ready to proceed to the place of unloading designated by the foreman in charge of said work, under whose direction plaintiff was then working, and plaintiff was directed to ride upon one of said cars, and was required to ride upon one of said cars in the performance of his duty, to the place of unloading; that said car upon which plaintiff was required to, and did, ride at said time, in the performance of his duties to complete said work of unloading, was an old, worn, and defective logging car, which had long been owned and used by said defendant, and that the equipment of said car, and the fastenings, and the reach holding the front and back of said car together, for some time prior to said date were carelessly, negligently, and wantonly suffered and permitted by said defendant to be and remain out of repair, and were in such a worn, used, and unfit condition as to render said logging car unsafe and unfit for the purposes required of it, which defective and unsafe condition of said logging car and its equipment was known to said defendant for a long time prior to said accident, or could have been known to said defendant by the exercise of ordinary care and proper inspection of said car, but which defects were unknown to plaintiff, and could not by the exercise of reasonable care have been known to said plaintiff; that at about the hour of 11:30 in the forenoon of the 17th day of November, 1906, after plaintiff had got on board of said car, and while he was proceeding upon said car to the place where said gravel and dirt was to be unloaded, and when said car had reached a certain trestle on said defendant's line of railroad about a half mile south of said defendant's sawmill, the pole or reach holding together the trucks of the car upon which plaintiff was riding broke away from and became loosened from one of the trucks of said car, owing to the worn and dilapidated condition of the equipment of said car, causing said car to be drawn and broken apart by the engine then drawing said logging train, and causing the bed or planks on said car upon which said gravel and dirt was loaded, and upon which plaintiff was then riding, to be thrown from off said trucks and down upon the ties and track of said railroad, and causing the plaintiff to be thrown down between said parted trucks onto said ties and track under said car in such a manner that his left arm was caught between the ties of said track, and the rear truck of said car not having wholly broken away, and rolling over and on said plaintiff, twisted plaintiff's said left arm between the ties of said track in such a manner that plaintiff's said arm was broken in two places, and plaintiff's back, hips, and thighs injured and wrenched, and other parts of plaintiff's body bruised and maimed, causing plaintiff to receive a severe nervous shock to his whole system.' For answer the appellant denied specifically the allegations of negligence set out in the complaint, and alleged that the respondent assumed all risk of injury by accepting employment from the appellant and...