Lewinn v. Murphy

• Citation: 63 Wash. 356,115 P. 740
• Parties: LEWINN et al. v. MURPHY.
• Decision Date: 16 May 1911
• Court: United States State Supreme Court of Washington

115 P. 740

63 Wash. 356

LEWINN et al. v. MURPHY.

Supreme Court of Washington, En Banc.

May 16, 1911

Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge.

Action by Bertha Lewinn and another against Michael Murphy. Judgment for defendant, and plaintiffs appeal. Affirmed.

Roche &amp Onstine and B. O. Graham, for appellants.

Cannon, Ferris, Swan & Lally, for respondent.

MORRIS J.

Appellants widow and child of Carl Lewinn, deceased, brought this action to recover for his alleged wrongful death through the negligence of respondent, and appeal from a judgment of dismissal granted by the court upon motion of respondent at the conclusion of appellants' case.

Respondent was the contractor engaged in the construction of a steel frame building at Spokane, and deceased was in his employ. On May 28, 1906, the building had reached a height of four stories. The framework was of steel, and iron columns on each floor connected with steel girders running east and west, and I-beams running north and south. The girders were from 15 to 20 feet long, the I-beams from 18 to 19 feet long, and running at right angles to each other, leaving open spaces on each floor about 18 feet square. The girders running east and west were 15 inches high, and the I-beams running north and south were 5 inches high, and were so placed that the beams running east and west were 5 inches higher than the beams running north and south, resulting as appellants claim in making lumber and building material piled across these beams 5 inches higher on one end than on the other. The second and third floors were wholly open except for a 10-foot platform on the inside of the walls used by the brick masons as a scaffold, and a runway of planks from one of these openings used as a hoisting shaft to the scaffold upon which material, after being brought up through the hoisting shaft, was taken in wheelbarrows to the scaffold. There was about a car load of lumber and building material of various sizes on the third floor, piled across the girders and I-beams. For about a week prior to May 28th, the work had been suspended on the building, on account of lack of needed material. It was resumed on that day. Deceased was a mortar mixer, working on the outside of the building; but about 1:30 p. m. he was called by respondent to assist him in hoisting window frames to the third story by means of a rope running through a pulley on the fourth floor. In doing this hoisting they were assisted by men on the third floor, who, standing upon a platform partially built across the opening, took the frames as they came up through one of these open spaces, and carried them to the required place. Respondent and the deceased had been engaged at the work about 20 minutes when a stick of timber 4 by 4 and about 6 feet long, fell from the third floor, striking a girder on the second floor, from which it bounded, and, again falling, struck deceased on the head, inflicting fatal injuries. The negligence alleged was in not furnishing a safe place in which to work, and negligent manner of construction. In addition to the above facts, there was testimony to the effect that using the hoist as they were using it and the walking of the men upon the plank runway, in carrying the frames from the hoisting shaft to the walls, would cause some vibration in the girders and some springing in the planks. Respondent also answered an interrogatory propounded by appellants, saying he did not know what caused the timber to fall, but that it was not knocked loose by an employé. There are no other facts, as we view them, material to the issue submitted here, which is the error of the court in granting respondent's motion for judgment.

There was no evidence as to the place from whence the timber that struck deceased came, except that it fell from the third floor. No witness testifies, either directly or by venturing an opinion, as to what caused it to fall. There is no suggestion of human or other intervening agency in its fall. There is no evidence that the timber and material piled on the third floor were piled in a careless or negligent manner, or in a manner different from that used by prudent contractors in the same character of construction. There was no evidence that it was so piled as to be jarred loose by the vibration, caused by hoisting material or carrying it across the planks, or that it was so jarred loose. The cause of the fall was therefore a conjecture and speculation. No jury could have determined it except as 'it might have been.' The law will not permit verdicts to rest upon such conjecture, and speculation, and the court was right in its ruling. Weckter v. Great Northern Ry. Co., 54 Wash. 203, 102 P. 1053, and other cases from this court there cited. It is not a case for the application of the rule of a reasonably safe place. There was nothing to show the place was not reasonably safe, except the accident itself. There was no suggestion as to what could have been done to make it safer or to prevent accidents of a like character.

The doctrine of reasonably safe place does not apply to the construction of buildings or other situations where the character of the place is constantly changing with the same force as it does to a completed structure or other permanent and fixed place. All that is required is that the place be as reasonably safe as the circumstances will permit, and that those engaged in the construction be not subject to unnecessary perils or dangers. Fournier v. Pike (C. C.) 128 F. 991; Armour v. Hahn, 111 U.S. 313, 4 S.Ct. 433, 28 L.Ed. 440; Finalyson v. Utica Mining & Milling Co., 67 F. 507, 14 C. C. A. 492; Roth v. Eccles, 28 Utah, 456, 79 P. 918; Kath v. Wisconsin Cent. Ry. Co., 121 Wis. 503, 99 N.W. 217; Cully v. Northern Pacific Ry. Co., 35 Wash. 241, 77 P. 202; Miller v. Moran Bros., 39 Wash. 631, 81 P. 1089, 1 L. R. A. (N. S.) 283, 109 Am. St. Rep. 917. There is no evidence before us that would bring this case within the most liberal rule announced in cases of this character.

Failing to establish any theory of negligence upon which a recovery could be predicated, appellants next invoke the doctrine of res ipsa loquitur upon which to base their right of recovery. With the exception of actions directed against common carriers, this rule has been applied to injuries received from falling objects more frequently than to any other class of cases. But even in these cases there is a well-defined line along which the doctrine runs. It has never been applied by the courts except where the facts and demands of justice make its application essential, depending upon the peculiar facts and circumstances in each particular case, and where the duty which the defendant owes the injured person is of such a nature that proof that the accident happened under the given conditions is of such value in law as to afford evidence of negligence in itself, and thus make out a prima facie case, and only then, when the producing cause of the injury is under the control of the defendant, and the accident is of such a nature that it would not ordinarily occur, except from the lack of due care. Thompson on Negligence, §§ 7635, 7636; Anderson v. McCarthy Dry...