Landry v. Seattle, P. A. & W. Ry. Co.
| Decision Date | 02 March 1918 |
| Docket Number | 14290. |
| Citation | 100 Wash. 453,171 P. 231 |
| Court | Washington Supreme Court |
| Parties | LANDRY v. SEATTLE, P. A. & W. RY. CO. |
Department 2. Appeal from Superior Court, Clallam County; John M Ralston, Judge.
Action by Ambrose A. Landry against the Seattle, Port Angeles & Western Railway Company. Judgment for defendant, and plaintiff appeals. Remanded, with instructions.
Griffin & Griffin, of Seattle, for appellant.
Geo. W Korte, Corwin S. Shank, and H. C. Belt, all of Seattle, for respondent.
This case is presented from many angles, but, as we view it, there is but one question for present decision. Action was brought by appellant to recover damages for personal injuries suffered while in the employ of the respondent. It seems that appellant with another was employed in repairing telephone lines along the right of way of respondent's road, which had been demoralized by severe storms. One Borgon had contracted with respondent to make the repairs, and had immediate charge of the work. Borgon and appellant worked together. Appellant was told to climb a pole and put an insulator on it. The pole was standing on a rather steep bank on the down side of the hill, and in earth that had been thrown out when the roadbed had been cut along the hillside. The pole stood upright and seemed to be sound and solid. Borgon says he applied the usual test, as did appellant, by putting his hand against the pole and pushing it to see if it was set firmly in the earth. Appellant went to the top of the pole, and as he was in the act of lowering a line for the purpose of hauling up a guy wire to be attached to a 'dead man,' which they had previously set in the ground, the pole gave way. Appellant fell with it, sustaining the injuries of which he now complains. It was then discovered that the pole had not been set in the ground a sufficient distance to sustain the superadded weight of the lineman. It is the practice to set poles in the ground a distance equal to about one-fifth of the height. The pole was about 25 feet high, and was set in the ground between 19 and 25 inches. Appellant is a lineman of many years' experience, and upon this showing of fact, respondent moved for a nonsuit. This motion was overruled. When the testimony was all in, respondent reasserted its legal position by motion for a directed verdict.
This was also overruled, and the case sent to the jury. Upon the return of an adverse verdict, respondent made a motion for a judgment non obstante veredicto and a motion for a new trial. The court took the several motions under advisement, and after due consideration wrote to counsel on either side at Seattle that the motion for judgment non obstante would be overruled, and directed that an order be prepared. This order was prepared, by counsel for respondent, and returned to the trial judge. Whereupon the judge, after more mature consideration, came to the conclusion that his first impression of the case was wrong, and directed that a judgment non obstante veredicto be entered.
Counsel first contends that the court had no power after deciding that the motion non obstante veredicto should be overruled to thereafter entertain it, and enter a judgment in favor of the respondent. We think it has been fairly settled by the decisions of this court that the formal judgment as entered is the judgment of the court irrespective of memorandum opinions or minute entries ( State ex rel. Jensen v. Bell, 34 Wash. 185, 75 P. 641; Gould v. Austin, 52 Wash. 457, 100 P. 1029; McGuire v. Bryant Lumber & Shingle Co., 53 Wash. 425, 102 P. 237; Michel v. White, 64 Wash. 343, 116 P. 680), excepting, of course, a judgment entry made by the clerk under the statute directing that such judgment should be entered by the clerk in cases tried by a jury.
It is the contention of counsel that appellant, being an experienced lineman, was bound to inspect the pole before climbing, and, having inspected it, he is bound by such inspection and cannot recover. In other words, that he is bound to an assumption of risk. Appellant contends that no means of inspecting poles was provided. It seems that the distance a pole may be set in the ground can be determined by the use of an iron rod, and it is said that this should have been furnished if respondent would hold appellant to the rule of self-insurance. This is met by respondent with a suggestion that the duty of inspection, by whatever means was on appellant, and that an inspection which would have shown the distance the pole was set in the ground could have been made by appellant with a shovel, which had been furnished by respondent, and which appellant was using in the work in which he was then engaged. This court has held that when a person, being experienced in his line of work, undertakes to do a certain thing calling for the exercise of skill and judgment, he is bound to inspect and reject all unfit tools and appliances that are put in his hands, and that he assumes at his own risk all work depending upon the strength and security of the means and methods employed by him, the theory of the law being that the experienced or expert workman is quite as competent to appreciate danger and avoid it as is his principle. But, after all, the various principles that are laid down by the courts in negligence cases where contributory negligence, or...
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