McLeod v. Chicago, M. & P.S. Ry. Co.

• Decision Date: 14 September 1911
• Citation: 117 P. 749,65 Wash. 62
• Court: Washington Supreme Court
• Parties: McLEOD v. CHICAGO, M. & P. S. RY. CO.

117 P. 749

65 Wash. 62

McLEOD v. CHICAGO, M. & P. S. RY. CO.

Supreme Court of Washington

September 14, 1911

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by Donald McLeod against the Chicago, Milwaukee & Puget Sound Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff in a negligence case, need not plead in detail the specific acts constituting the negligence complained of.

H. H Field and Geo. W. Korte, for appellant.

William Parmerlee, for respondent.

ELLIS, J.

Appeal from a judgment in favor of respondent for $3,000 for personal injuries claimed to have been suffered by him while in the employ of appellant on July 6, 1909. The respondent was employed as a carpenter some three or four days before the accident by one A. B. Conley, general foreman in charge of the construction of four transfer bridges or apron slips along the water front at Ballard, Wash. These structures were being built it order to transfer cars from barges or ferries to railroad switch tracks running from different mills to the water's edge. In order to meet the fluctuations of the tide, these aprons are constructed extending into the water with a knuckle or socket at the lands end, and counterweights at the outer end, permitting the aprons to rise and fall with the tide. The slips were first constructed upon falsework and, when completed, it was necessary to lower them into the sockets by means of two jackscrews at the land end, while the supports in the falsework were lowered under them. During construction planks were placed along the top for the conveying of material and the passage of men to the outer end. On the slip in question three planks each three inches thick, a foot wide, and fourteen or sixteen feet long were placed side by side, running the full length of the slip. At the time the respondent began work this slip was about completed, so as to be ready for lowering into the socket. On the day of the accident he was working at one of the jackscrews under the slip at the land end near the socket. It does not definitely appear that the time had yet arrived for the entire removal of the falsework, but it is evident that the plank walk or truckway on the top was to be removed. The evidence is uncontradicted that Conley was general foreman in charge of the construction of the four slips, and had the power of hiring and discharging men. He testified that it was customary to appoint a straw boss from among the men to superintend the work on each slip during his absence. He had appointed one Thomas McBurney as straw boss or foreman on this particular slip. While McBurney worked with the other men, of whom at that time there were about 15 at work on this slip, they were all subject to his orders and direction. His main duty was that of direction, as he was not expected to do any of the heavier work. He had no power to hire and discharge the men. The evidence shows that he received the same pay as the carpenters, but more than the other laborers. Conley testified that, after he appointed McBurney as straw boss, he, Conley, was at that slip probably twice a day, and sometimes only once a day, and that, even when he was there, McBurney still retained his authority over the men. At the time of the accident McBurney had taken all of the men at work there, excepting the respondent and possibly one other man, to the top of the slip, for the purpose, as it appears, of removing the plank walk or truckway, and lowering the cross-supports, which were 12 by 12 timbers placed crosswise in the falsework under the slip, so that the slip could be further lowered upon them by means of the jackscrews. Respondent, McLeod, was at the time at work placing a block for a foundation for a jackscrew which had to be reset. Neither he nor any one else seems to recall whether the man who had been working at the other jackscrew was then there. Respondent was at the time from four to seven feet--most of the witnesses say about six feet--below the slip. The evidence is contradictory as to just what the men on top of the slip were doing at the time, but it seems almost conclusive that they were starting to remove the planks, though McBurney testified that he did not intend to remove the planks, but he did direct the removal of the cross-pieces in the falsework under the slip.

One C. W. Munsell, a workman there at the time, testified as to how the accident occurred, as follows: 'A. The accident occurred by a man by the name of Mr. McBurney lifting a plank, letting it loose from him, making a remark at the time he let it go, 'God damn it, I'll move that plank,' simply because he had ordered us men to move it, and we hadn't had time yet to do it. The plank had a bearing in such a way that there was one long end and one short end. It had a bearing here [illustrating], and here was the long end, and he took hold of it at the short end.

When the plank had been freed from the bearing on the short end, it became so heavy here [indicating] that it went out of his hand like a flash, and down below, and struck this man on the hand as it went down. Q. What was McLeod doing at the time? A. That is something that you couldn't really prove by me truthfully, because he was underneath, and I couldn't say what he was doing. But he was working in the operation of the lowering of the bridge at the time, either in the blocking, or in the operating of the jacks, or something of that nature, underneath. Q. Was there an exclamation of pain from him when it struck him? A. There couldn't help but be. Q. Did you see his hand at the time? A. I didn't examine it closely; only from a distance of perhaps half a rod. I was above on the bridge, and, as the plank went down, I looked down quick when a man by the name of Boyd hollered, 'Jesus Christ, there's a man down there,' and I looked down then, and saw that a man's hand was mashed. * * *'

McBurney testified as follows: 'A. Well, in moving this timber that was supported lower down--in the men moving that timber back--they let the other board slip off the end of the slip, and it fell down. One end of the plank was on this timber, and the other end was on the end of the slip, where Mr. McLeod was working right under with the jack. Q. Who was moving the timber? A. The men were moving the timber. I don't know which ones. Q. Do you remember whether or not you personally were moving the timber? A. I was engaged in moving the timbers, but I don't just remember that.'

Respondent testified as follows: 'A. I was helping to lower the bridge, or the slip, with a jack. I had a jack on top of this socket here, and the other end--I don't know whether it was on the stringers, or on the end of the bridge. It was at the end of the bridge anyway. It was in a fixed position, and I couldn't lower the bridge any lower than the jack was, because the bridge was down to the full length of the jack, when it was down. I had to move this jack to some other place a little farther in. That was the only place there was. There was two timbers below there, and I had to get a block across there to rest the jack on. When I was getting that block ready, the plank came down on top of me. Q. Did you have any warning that they were going to throw plank down on you? A. No, sir. Q. How did it hit you? A. My hand was on top of that block somehow, and the plank came down on top of it, here [indicating]. * * * Q. Tell the jury how it hurt you. A. The plank came down on top of my wrist. This was cut here, and it was bruised on this side here below [indicating]. That is all I can tell you.'

The allegations of the complaint as to the employment, negligence, and injury are as follows: 'That on July 6, 1909, plaintiff was employed by defendant as a carpenter, and was engaged in his said work for defendant on a slip at Ballard, Wash., and while the plaintiff was so engaged in his said work, the said defendant so carelessly and negligently conducted and operated the building of said slip so as to cause a plank or timber to fall from the top of said slip down to and on the plaintiff, striking the right hand of the plaintiff and greatly damaging and injuring the same.' A general demurrer to the complaint was overruled. This is assigned as error, the contention being that the complaint states no facts, alleges no breach of duty, nor any negligent act of which respondent was ignorant, and of which appellant had knowledge as the proximate cause of the injury, and that the allegations are mere conclusions. Appellant cites many authorities from other states holding that a general allegation that an act was negligently done is not sufficient under statutes similar to 1 Rem. & Bal. Code, § 258.

We find, however, that the decided weight of authority is contrary to this view. 'The rule is well-nigh universal that in an action for negligence the plaintiff need not set out in detail the specific acts constituting the negligence complained of, as this would be pleading the evidence.' 14 Ency. Pl. & Pr. p. 333; 29 Cyc. p. 570; Oldfield v. N.Y. & H. R. R. Co., 14 N.Y. 310; Hammond v. Schweitzer, 112 Ind. 246-248, 13 N.E. 869; Town of Rushville v. Adams, 107 Ind. 475, 8 N.E. 292, 57 Am. Rep. 124; Clark v. Chicago, M. & St. P. Ry. Co., 28 Minn. 69, 9 N.W. 75; Lucas v. Wattles, 49 Mich. 380, 13 N.W. 782; Ekman v. Minneapolis St. Ry. Co., 34 Minn. 24, 24 N.W. 291; Louisville & N. R. R. Co. v. Wolfe, 80 Ky. 82. Moreover, this court has adopted the more liberal rule. It is no longer an open question in this state. Collett v. Northern P. Ry. Co., 23 Wash. 600, 63 P. 225; Uren v. Golden Tunnel Min. Co., 24 Wash. 261, 64 P. 174; Cogswell v. West St., etc., Ry. Co., 5 Wash. 46, 31 P. 411.

Counsel cite authorities to the effect that, where the...