Malland v. Sims, 24363.
| Decision Date | 25 July 1933 |
| Docket Number | 24363. |
| Citation | 173 Wash. 649,24 P.2d 70 |
| Court | Washington Supreme Court |
| Parties | MALLAND v. SIMS et al. |
Department 2.
Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.
Action by William Malland against Charles Sims and others. Judgment for plaintiff, and defendants appeal.
Reversed with directions.
Thomas Balmer, Edwin C. Matthias, and Charles S. Albert, all of Seattle, and Clayton M. Williams and Jesse H. Davis, both of Everett, for appellants.
Newton & Newton and William A. Johnson, all of Everett, for respondent.
This is an action for personal injuries tried to a jury. A verdict was rendered in favor of the plaintiff in the sum of $13,700. On motion for a new trial the verdict was held to be excessive and the result of passion and prejudice. The plaintiff was given the option of consenting to a reduction in the amount of the verdict to $7,500, and he so consenting, a judgment followed upon the verdict as reduced from which the defendants have appealed.
Appellants present here a number of interesting and important questions but the conclusions we have reached on one of the questions makes it unnecessary to consider the others. We shall therefore limit our statement of the facts and our discussion to the one decisive question.
It appears that at the time of receiving the injuries the respondent was the foreman in charge of loading shingles on board cars stationed on side tracks or spurs adjacent to a shingle mill in the city of Everett. For some days, perhaps a week, preceding the accident, appellant Sims, with the appellant Haley as engineer and a crew of men under him all employed by the appellant Great Northern Railway Company, had been engaged in repairing the spur track by driving new piles as needed to support a trestle.
Each crew was well informed as to the presence of the other. Only an hour or a little more Before the happening of the accident, respondent had personally requested Sims to move the pile driver a few feet so that he (the respondent) might move up another car to be loaded. At the time of the accident two cars standing on parallel tracks were being loaded at the same time and by the same conveyor. This mechanical power-driven conveyor passed through the first car in which respondent was working alone. He there took from the conveyor such bundles of shingles as he could handle, and those remaining were passed on by the conveyor to the car beyond, where two men cared for what the conveyor brought to them. All admit that the situation was as just described when, shortly Before noon, the pile driver moved back along the spur track toward the place it had occupied earlier in the day. Apparently two cars had been moved up instead of one as Sims and Haley had expected. At any rate, they misjudged the space and distance to the extent that the pile driver struck the first of the string of box cars connected with the one occupied by respondent with sufficient force to move that car and displace the shingle conveyor. No harm was done by this contact, and the trial court instructed the jury that it was not a proximate cause of the accident which later followed. No one now complains of that ruling.
At this point, and following the bumping which stopped the conveyor, the witness Golding, who was a member of respondent's loading crew employed by him and working under his supervision and direction, enters the picture. Golding testified that he did not hear the bump of the cars, but did see that the conveyor was out of commission and went immediately to the car occupied by respondent and there assisted in putting the conveyor again in position to operate. He continued under examination in chief, as follows:
On cross-examination he testified:
Respondent's version of the accident, as testified to by him, is as follows:
We find nothing in the record tending to show that Golding was not directed by respondent to make the request to have the cars respotted or that it was not his duty so to do without special direction, and there is no suggestion that there was anything in the situation as then disclosed to Sims and Haley which would lead them to question the request of Golding or which would put them upon notice that any one would be subjected to any danger by their prompt compliance with that request. The situation was not changed by the evidence for the defense except to make it more clear and more strongly an undisputed question of fact that Golding made the request for the respotting of the cars and that Sims and Haley complied promptly and readily with that request with nothing whatever to warn them that their act in so doing would place any one or anything in danger.
It seems to be conceded, at least not denied, that the pile driver was not a locomotive designed for moving freight cars; that it had but little power which could be so applied, and as a consequence it could move a string of two or three box cars only with the greatest difficulty and not with the smoothness and efficiency of a locomotive. Probably for this reason there was no charge of negligence as to the manner of attempting to respot the cars, but only that the attempt was made at all or without warning. No instruction was given which permitted the jury to find that the attempt to respot the cars was in any manner negligently carried out save only that no prior warning was given to the respondent.
We think the trial court should have sustained the challenge to the evidence which was interposed at the close of plaintiff's case or should have directed a verdict for the defendants at the close of the whole case.
'Negligence' has been often defined by this and other courts:
'Negligence is the want of care required by the circumstances.' Olmstead v. Olympia, 59 Wash. 147, 109 P. 602, 604.
'Negligence' is an omission of duty imposed by statute or implied by law.' Mayhew v. Yakima Power Co., 72 Wash. 431, 130 P. 485, 486.
'Negligence consists in doing some act which should not have been done,...
To continue reading
Request your trial
-
System Tank Lines v. Dixon
...would not have done, or in the failure to do an act which a reasonable man would have done under similar circumstances. See Malland v. Sims, 173 Wash. 649, 24 P.2d 70, 27 P.2d 1119; Severns Motor Co. v. Hamilton, 35 Wash.2d 602, 214 P.2d 516; LeMoreaux v. Fosket, 45 Wash.2d 249, 273 P.2d Th......
-
Fink v. Dixon
...some act which a reasonably prudent person would or would not have done under the same or similar circumstances. Malland v. Sims, 1933, 173 Wash. 649, 653, 24 P.2d 70, 27 P.2d 1119, and cases cited; Severns Motor Co. v. Hamilton, 1950, 35 Wash.2d 602, 604, 214 P.2d 516, and case and text ci......
- Deming v. Jones, 24352.
-
Malland v. Sims
...PER CURIAM. Upon a rehearing en banc, a majority of the court adhere to the departmental opinion heretofore filed herein and reported in 24 P.2d 70, except only that by inadvertence there appears that opinion an incorrect statement of fact which it is desired to correct. It is therefore ord......