Koloff v. Chicago, M. & P.S. Ry. Co.

• Decision Date: 18 January 1913
• Citation: 129 P. 398,71 Wash. 543
• Court: Washington Supreme Court
• Parties: KOLOFF v. CHICAGO, M. & P. S. RY. CO.

129 P. 398

71 Wash. 543

KOLOFF v. CHICAGO, M. & P. S. RY. CO.

Supreme Court of Washington

January 18, 1913

Department 2. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by Nick Koloff, as administrator of the estate of Christ P Koloff, deceased, against the Chicago, Milwaukee & Puget Sound Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Geo. W Korte, of Seattle (F. M. Dudley, of Seattle, of counsel), for appellant.

Walter L. Johnstone and S. A. Keenan, both of Seattle, for respondent.

ELLIS J.

This is an action by the administrator for the benefit of the widow and minor children of the decedent to recover damages from the defendant railway company for its alleged negligence resulting in the decedent's death. The evidence introduced by the plaintiff fairly established the following facts: The decedent was a common laborer, about 35 years of age, a native of Bulgaria, and had resided in this country but about 26 months. The defendant in September, 1911, was constructing an oil tank at Moneton, now Cedar Falls, Wash. The lower portion was of concrete, and above this of brick work upon which were to rest two 12 by 12 wooden beams for the support of a large steel oil tank. This and various other work was being done in that vicinity, and a number of men, including the deceased, were there employed under the direction of a foreman of the defendant. The concrete and brick work of this structure constituted a hollow, octagonal tower, about 40 feet high, which had been completed at the time of the accident. On September 19th the foreman called 8 or 10 men, among them the deceased, from other work to assist in hauling up, by means of a rope and tackle, the timbers to be placed across the top of this tower. Near the bottom was a door, and the timbers were being hauled up from the inside. Two men were placed inside the tower to attach and guide the rope, while the deceased and five other men were directed by the foreman, who was in immediate charge of the work, to stand near the door on the outside and pull on the rope at his command. The foreman and another man were on top to the tower, at a point almost immediately above the six men. The first timber was hauled up without mishap. After the second timber was started, some difficulty was experienced, and it was lowered for readjustment of the rope by the men inside. While this was in progress, the foreman was engaged in shifting the position of certain loose bricks on the top of the tower, tossing them from one position to another immediately above the six men. He had been so engaged for three or four minutes when a brick fell, striking the deceased and killing him. At the time one of the two men on top of the tower--no witness could say which--called out, 'Look out below,' and immediately afterwards, 'My God, I have killed a man.' While no witness testified to seeing a brick leave the foreman's hands and hit the deceased, one man said he saw one of the bricks tossed by the foreman fall from the tower and strike the timbers of a narrow scaffold above the men below; that he could not see the man below, but immediately ran to the tank and saw the man lying down. There was no evidence tending to show that the deceased was ever on top of the tower, or had ever worked upon it or about it, or that he had any knowledge or warning of any king that there were loose bricks upon it. The defendant offered no evidence.

The complaint charged as negligence (a) the throwing of, or causing the brick to fall, by the defendant's foreman in charge of the work; (b) the placing of deceased in a dangerous and extrahazardous position of which he had no knowledge or means of knowledge; (c) failure of the defendant to provide the deceased with a safe place of work; (d) failure to provide any means to protect the deceased from carelessness or negligence on the defendant's part. The cause was tried to a jury. Defendant's motion for a nonsuit was overruled. The jury returned a verdict for $10,000. Defendant's motion for a new trial was overruled, and judgment was entered upon the verdict. The defendant appealed.

The appellant first contends that there was no evidence to show, either directly or indirectly, what caused the brick to fall. As we have seen, there was direct evidence that the foreman was tossing the bricks from one position to another, and that one of them fell. There was no evidence that more than one brick fell, and the evidence was conclusive that a falling brick killed the deceased. The evidence was ample to warrant the jury in finding that the negligence of the foreman caused the brick to fall. The cases from this court cited by the appellant are not apposite. In Lewinn v. Murphy, 63 Wash. 356, 115 P. 740, Ann. Cas. 1912D, 433, there was no evidence of any human agency in connection with the fall of the plant. In Hansen v. Seattle Lumber Co., 31 Wash. 604, 72 P. 457, there was no evidence, either direct or circumstantial, to show what caused the accident. In Frengen v. Stone & Webster Eng. Corp., 66 Wash. 204, 119 P. 193, the facts were in no sense similar to those here presented.

It is also contended that, if the cause of the fall of the brick was shown, it was something over which the appellant as master had no control, and was the result of an omission of fellow service. This is equally untenable. Without attempting to pursue the tenuous distinctions suggested by the appellant, it will be sufficient to say that the negligent act of the foreman infringed a duty which the appellant as master owed to the deceased, namely, the exercise of reasonable care to furnish a reasonably safe place of work and to keep it reasonably safe. There is no question of fellow service involved. Hall v. Northwest Lumber Co., 61 Wash. 351, 112 P. 369. If the foreman did not represent the master, then there was a confessed lack of reasonable supervision looking to the safety of the servant's place of work. Martin v. Hill, 66 Wash. 433, 119 P. 849; Hicks v. Jenkins, 68 Wash. 401, 123 P. 526. If he did represent the master, then his negligence in that capacity rendered the place of work unsafe. He should not have moved the bricks nor permitted them to be moved without warning the men below. The case is simple and typical. It falls directly within the principles announced by this court in the following decisions: King v. Griffiths-Sprague Stevedoring Co., 45 Wash. 425, 88 P. 759; McLeod v. Chicago, M. & P. S. Ry. Co., 65 Wash. 62, 117 P. 749; Nelson v. Willey Steamship & Nav. Co., 26 Wash. 548, 67 P. 237; Howland v. Standard Milling & Logging Co., 50 Wash. 34, 96 P. 686; Creamer v. Moran Bros. Co., 41 Wash. 636, 84 P. 592.

The deceased, when he took the position to which he was assigned by the foreman's command, had the right to assume that it was reasonable safe. He assumed no risk not reasonably a necessary incident to the actual work in hand. He was subjected to an unnecessary peril without warning. Richardson v. Spokane, 67 Wash. 621, 122 P. 330; Fueston v. Langan, 67 Wash. 212, 121 P. 55; Dumas v. Walville Lumber Co., 64 Wash. 381, 116 P. 1091; Howland v. Standard Milling & Logging Co., supra; Hicks v. Jenkins, supra; Cook v. Chehalis River Lumber Co., 48 Wash. 619, 94 P. 189.

It is next contended that there was no competent proof that the decedent left a widow and children. His brother testified that he was present at the wedding in Bulgaria 10 years ago; that the ceremony was performed by a Christian priest, as customary in that country; that the contracting parties lived together until decedent came to this country; that three children were born to them, a girl and two boys. This evidence was competent and ample to go to the jury upon these points. 8 Ency. Ev. 465; Potter v. Potter, 45 Wash. 401, 88 P. 625; Nelson v. Carlson, 48 Wash. 651, 94 P. 477. It is also contended that there was no evidence of a legal appointment of the respondent as administrator. It is argued that the appointment was invalid because it was made within 40 days after the decedent's death, and there was no showing of waiver of the right to act or of a request to appoint the respondent by the widow. Whatever might be said of this contention on a direct attack, it is unavailing here.

The right of the surviving spouse and next of kin, in their order, accorded by statute (Rem. & Bal. Code, § 1389), is a personal right. It is waived by a failure to apply within 40 days after the death. Such failure confers upon the court discretionary power to appoint any suitable person. McLean v. Roller, 33 Wash. 166, 73 P. 1123.

The petition for administration shows that the widow and children are nonresident aliens. None of them could act. The decedent's brother, a resident of this state, who was appointed, is, so far as the record shows, a suitable person. The 40 days have long since expired, and none of the persons entitled to priority have objected to the appointment. The appointment is valid as against collateral attack. 18 Cyc. p. 140; Moreland v. Lawrence, 23 Minn. 84; Pick v. Strong, Adm'r, 26 Minn. 303, 3 N.W. 697; Larson v. Union P. R. Co., 70 Neb. 261, 97 N.W. 313. See, also, Wiley v. Verhaest, 52 Wash. 475, 100 P. 1008; Magee v. Big Bend Land Co., 51 Wash. 406, 99 P. 16; State v. Ayer, 17 Wash. 127, 49 P. 226.

It is next urged that there was no competent evidence that the widow and children authorized or sanctioned the bringing of this action by the administrator. This action was brought under section 183, Rem. & Bal. Code. This court has held that no right of recovery for wrongful death existed at common law, and that the right is therefore governed by the statute ( Manning v. Tacoma Ry. & P. Co., 34 Wash. 406, 75 P. 994); also that the sole beneficiaries of the...