McDonough v. Great Northern Ry. Co.

• Decision Date: 18 September 1896
• Citation: 15 Wash. 244,46 P. 334
• Parties: MCDONOUGH v. GREAT NORTHERN RY. CO. ET AL. [1]
• Court: Washington Supreme Court

46 P. 334

15 Wash. 244

MCDONOUGH v. GREAT NORTHERN RY. CO. ET AL. ^[1]

Supreme Court of Washington

September 18, 1896

Appeal from superior court, Spokane county; Wallace Mount, Judge.

Action by Coleman McDonough against the Great Northern Railway Company and the St. Paul, Minneapolis & Manitoba Railway Company for personal injuries caused by defendants' negligence. From a judgment in favor of plaintiff against the Great Northern Railway Company, the latter appeals. Affirmed.

C. Wellington, Jay H. Adams, and M. D. Grover, for appellant.

Graves, Wolf & Graves, for respondent.

GORDON, J.

The appellant is a railway corporation owning and operating a line of railway in this state. The respondent brought this action in the superior court of Spokane county to recover damages for an injury to his person, which damages he alleges were sustained by reason of appellant's negligence. The complaint, among other things alleges that in the month of January, 1893, the appellant company was engaged in blasting rock near its track, and transporting the same on flat cars to Mason creek, a distance of about three miles, to be used in riprapping; that one Nolan was at said time and place in control and charge of said work, and of the men engaged thereon, including the plaintiff, and that one Ryan was also foreman, and as such had direction of said work, in connection with Nolan; that on the 8th day of said month, while plaintiff was engaged drilling a hole in a certain large rock lying by the side of said railway, "the said rock was exploded, by reason of the concealed load of giant powder therein; *** that said Nolan, at all times after said charge of powder was placed in said rock, well knew that said charge of powder was concealed therein, and negligently and carelessly permitted same to remain therein, and without giving notice thereof, and negligently and carelessly permitted plaintiff to drill the said hole therein, well knowing the danger incident thereto that at the time of drilling said hole, and at all the times before and up to the time of receiving injury hereinafter mentioned, plaintiff was ignorant that said powder or other explosive was concealed in said rock, and wholly ignorant that there was any danger in and about doing said work." As the result of said explosion, plaintiff sustained severe bruises and wounds in and about the face, head, neck, and left eye, as a result of which he was obliged to have his eye removed. Continuing, the complaint alleges "that said injuries to plaintiff have continued ever since the time of receiving said hurts to the present time, and are permanent and will continue for the whole of his natural life; that, by the reason of the loss of said eye, plaintiff is deformed, and his face has become and is ugly and repulsive, and will so continue for the whole period of his natural life; that, by reason of said injury, plaintiff was prevented for a period of six months from following his ordinary avocation and business; that plaintiff's business was at the time of such injury, and for a long time before had been, and yet is, that of a common laborer, and that he was used to earn in and about his said business two dollars per day, and that by reason of his injuries, and loss of time for said period of six months, he has been damaged in the sum of four hundred dollars; that, in consequence of said injuries, plaintiff has suffered great pain and anguish, and will suffer great pain and anguish for the whole of his natural life; that, by reason of the premises, plaintiff has been damaged in the sum of forty thousand dollars." The court overruled a demurrer to the complaint, and appellant answered, denying all the material allegations of the complaint, and alleging affirmatively that whatever injury respondent sustained was sustained by reason of his own want of care, and resulted from one of the risks of the employment, which he voluntarily assumed. The trial resulted in a verdict in favor of respondent in the sum of $7,500. Upon motion for a new trial the lower court found that said verdict was excessive to the extent of $2,500, and ordered that that amount of the verdict should be remitted by respondent; and, respondent having consented thereto judgment was entered against appellant for the sum of $5,000, from which it has appealed.

From the evidence it appears that the respondent was one of a gang of laborers, comprising some 60 or more, all of whom were under the control of one Nolan, who had absolute charge of this particular work, with authority to hire and discharge laborers, and direct when and where they should work, and what labor they should perform. He also had a construction train under his charge and control for the purpose of transporting the rock from the place where it was taken out to the point on said creek where it was to be used. Plaintiff was a common laborer, and had been in the employ of the appellant for about two months prior to the injury, but had been working at the place where the accident occurred for about two weeks only. More or less blasting was done in breaking up and removing the rock. It seems that the usual method pursued was to load a number of blasts or charges, then retire the men to a place of safety and fire the blasts; that a set of blasts was so fired on the afternoon of the 7th of January, 1893. The evidence clearly shows that at that time the respondent was not at the quarry or place where the blasts were fired, but was engaged in unloading rock from the cars at the creek, some three or four miles distant; that on the following day he was at work in the quarry, and, as we think the evidence sufficiently showed, was engaged in performing such labor as was required of him, and while assisting in the drilling of a hole in a rock (the respondent holding the drill while another workman used the hammer) an explosion occurred, resulting in the injuries to the respondent hereinbefore referred to. The evidence shows that the rock which respondent was engaged in drilling at the time of the explosion had the appearance of having come down the hillside to the place at which it was lying when the work of drilling began; that it was partially covered with dirt and snow, and there was nothing "to indicate any appearance of a blast being in there." John McDonough, a witness for the plaintiff, testified that on the day before the accident occurred, and just after a set of blasts had been fired, and the men had returned to the quarry, he saw Nolan (the foreman) walk up to the rock in question, and take hold of the fuse, and "pulled it up, and threw it over his shoulder." "Q. What rock was it he pulled the fuse out of? A.

The one next the track. The one the men was drilling when he was blowed up. Q. This was about four o'clock the day before he got hurt? A. Yes, sir; on the 7th." On cross-examination he further testified: "Q. You know you saw him [Nolan] right there? A. Yes, sir. Q. Walk and pick up the fuse? A. Yes, sir. Q. And pulled it out of the rock, and threw it over his shoulder? A. Yes, sir." Numerous errors have been assigned in the able brief of appellant's counsel, but those mainly urged, and the only ones which we think are of sufficient importance to require special mention, are as follows:

1. It is urged that the court erred in permitting the respondent, after the close of his testimony, to file an amended complaint. We do not think that the amendment was of such a character as to materially change the cause of action, or such as to occasion surprise, or place opposing counsel at a disadvantage; and the ruling of the lower court in this respect falls within the holding of this court in Hulbert v. Brackett, 8 Wash. 438, 36 P. 264.

2. It is urged that the lower court, having found that a portion of the damages assessed by the jury was in fact excessive, should have granted a new trial, and not have directed a remission of a portion of the verdict. But this court has, in numerous cases, sanctioned the course pursued by the trial court. Winter v. Shoudy, 9 Wash. 52, 36 P. 1049; Kohler v. Railway Co., 8 Wash. 452, 36 P. 253, 681; Rigney v. Water Co., 9 Wash. 245, 37 P. 297.

3. The following instructions were requested by the appellant, and the refusal of the court to give them to the jury was excepted to: "(1) If you should find from the evidence that the injuries sustained by the plaintiff, if any such he did sustain, were received by him through the omission of the foreman, Nolan, to notify the plaintiff of the existence of an unexploded blast on the rock whereon the plaintiff was working, then I instruct you that such omission on the part of Nolan was the act of a fellow servant, and the plaintiff is not entitled to recover." "(3) If you find from the evidence that William Nolan had charge and control of the plaintiff and his co-laborers at the time of the happening of the injury to the plaintiff, and had the power to employ and discharge such laborers, and with authority to direct such laborers in the performance of their work, yet if you should further find that said Nolan was under the control supervision, and oversight of the road master or assistant road master of the defendant, and that the work being done by the said Nolan and his gang of laborers was under the control, supervision, and oversight of such road master or assistant road master, then I instruct you that, in the matter of the details of the work being done by Nolan and his gang of laborers, Nolan was a fellow servant with the plaintiff, and for the omission of the said Nolan in...