Liedke v. Moran Bros. Co.

• Decision Date: 15 August 1906
• Citation: 86 P. 646,43 Wash. 428
• Parties: LIEDKE v. MORAN BROS. CO.
• Court: Washington Supreme Court

86 P. 646

43 Wash. 428

LIEDKE v. MORAN BROS. CO.

Supreme Court of Washington

August 15, 1906

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Julius Liedke against the Moran Bros. Company, a corporation. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Peters & Powell, for appellant.

Casey &amp Casey and John F. McLean, for respondent.

DUNBAR J.

This is an action for damages for personal injuries. In brief, the plaintiff sets forth in his complaint that on the 18th day of March, 1905, he was in the employ of the defendant corporation, that he was ordered and directed by a representative of the defendant company to mount a scaffold that while he was at work on this scaffold it fell on account of its faulty construction, and that in consequence of this fall he sustained the physical injuries for which he seeks damages. The answer admitted that the plaintiff was in the employ of the defendant and that he fell from a scaffold. All the other allegations of the complaint are put in issue by the answer. It was also affirmatively pleaded by the answer that the danger of the situation was open and apparent, that plaintiff assumed the risk of being hurt by working in that situation, and that he was guilty of contributory negligence. The reply of the plaintiff denies the matters of affirmative defense. On the trial of the cause a judgment was rendered in favor of the plaintiff for $1,000. From this judgment this appeal is taken.

The first error assigned is that the court erred in overruling defendant's motion for a nonsuit at the close of plaintiff's case, for the reason that the plaintiff's case itself shows that, if he received any injury through a defective scaffold, the risk was one which he in law was presumed to have assumed, and, further, that his own case showed contributory negligence in his going upon the scaffold, if it was such as he claimed it to have been. Appellant in support of this assignment relies largely upon the case of Steeples v. Panel, etc., Box Co., 33 Wash, 359, 74 P. 475. But that case, it seems to us, is very plainly distinguishable from the case at bar. There a night watchman fell from a second-story eight-foot platform there being no railing on one side of the platform where he fell off, he having been at work for some time on the platform and knowing of the absence of the railing, the platform being under his supervision and control, and lanterns being at hand for his use while working where it was dark; presenting a plain case of assumption of risk. But here the circumstances are entirely different. The respondent was ordered to work upon this scaffold and, in performing his duty, the scaffold by reason of its faulty construction, fell and he was injured. There was no apparent danger. It is true that the plaintiff stated that he did not examine the scaffold when he went onto it, but under the uniform rulings of this court, and under the provisions of the law as announced ordinarily by the courts, it is not the duty of a laborer, when ordered by the master to work, to make an examination of the place where he is required to work; for it is undisputed law that he has a right to assume, in the absence of apparent danger, that the master has furnished him a reasonably safe place in which to work.

The second assignment embraces an objection to the following instruction: 'But there is an obligation which the law for the protection of society, imposes upon the employer of labor, and that it is his duty to provide his employé with a reasonably safe place within which to work, and with reasonably safe appliances with which to work. He must exercise ordinary care in that respect, to see that a reasonably safe place and reasonably safe implements are provided, and the duty of reasonable...