Mercer v. Lloyd Transfer Co.
| Decision Date | 08 August 1910 |
| Citation | 110 P. 389,59 Wash. 560 |
| Parties | MERCER v. LLOYD TRANSFER CO. |
| Court | Washington Supreme Court |
Appeal from Superior Court, King County; George A. Joiner, Judge.
Action by W. G. Mercer against the Lloyd Transfer Company, a corporation, to recover damages for personal injuries. From a judgment in plaintiff's favor, the defendant has appealed. Reversed and remanded, with directions to dismiss.
Kerr & McCord, for appellant.
Vernon W. Buck, for respondent.
Respondent moves to dismiss the appeal for the reason that the notice of appeal was not served in time. The verdict was returned and the final judgment was entered on June 4, 1909. The order denying respondent's motion for a new trial was entered on September 18, 1909, on which date the time for appeal commenced to run. The notice was filed on November 5, 1909 within time. Appellant also moves to strike the statement of facts, contending that it was not filed in time. A proposed statement of facts, in the absence of any extension of time must be filed and served within 30 days after the time begins to run within which an appeal can be taken. Respondent's proposed statement was filed and served within the 30 days on October 12, 1909. The motion to dismiss and the motion to strike are both denied.
Appellant made and filed its alternative motion for judgment notwithstanding the verdict, or for a new trial, which was denied, and we find it necessary to consider only its contention that the trial court erred in denying the motion for judgment notwithstanding the verdict.
The following undisputed facts appear from the evidence: That appellant is a transfer company in the city of Seattle, engaged in handling and transporting all kinds of goods, wares, and merchandise; that respondent was in its employ at the time of his injuries, being engaged as helper to one Peters, a driver, also employed by appellant; that respondent and Peters went to a warehouse in Seattle to load upon one of appellant's trucks four iron plates, weighing about 900 pounds each, and transport them a distance of about three city blocks; that the plates were about six feet long and four feet wide; that the bed of the truck was six feet wide and much longer than the plates; that respondent and Peters and two employés of the warehouse loaded the plates on the truck; that instead of placing them flat or in a horizontal position, and for the purpose of unloading with greater ease, they stood them upon the bed of the truck, upon edge, and leaned them at an angle of about 45 degrees against certain posts or stanchions; that after the plates were on the truck respondent asked Peters if he did not intend to the them; that Peters replied in the negative; that thereupon respondent stood upon the dray and held the plates with a stake; that when the truck was crossing a railway track, one of its wheels commenced to slide on striking a rail; and that the plates toppled and fell against respondent.
Respondent alleged that the appellant was negligent (1) in failing to furnish him a safe place in which to work; (2) in that its foreman carelessly and negligently ordered him to dispense with tying the plates; and (3) in that Peters drove across the railway track in a careless and negligent manner. The appellant pleaded the affirmative defenses of assumption of risk, contributory negligence, and negligence of a fellow servant. Respondent's allegations of negligence on the part of the foreman and of Peters, the driver, were properly withdrawn from the jury for want of evidence to sustain them.
This leaves for consideration the single question whether appellant was negligent in failing to furnish the respondent a safe place in which to work. This issue was submitted to the jury by the trial judge who, in his instructions, said: 'I instruct you that in order for the plaintiff to recover it must be found that the place was unsafe, and that he went to work in an unsafe place upon the direction of the teamster, Peters, and that Peters had authority to direct his actions in that particular.'
We fail to see how the doctrine of safe place or the question of a vice principal can be involved in this action. It appears that Peters, the driver, and respondent, as appellant's employés, were jointly engaged in the task of loading plates that they were each in such a situation as to afford them a controlling influence the one over the other, and that the only negligence, if any, was their joint act in improperly loading the plates. There is no claim that the truck was defective, out of repair, or unfit for the purpose for which it was being used. It was a proper and safe instrumentality provided by the master; nor was there anything necessarily dangerous about the place in which they were working. The only dangerous element which at any time threatened them, or injured the respondent, was one which he and Peters unnecessarily created by loading the plates in an improper and unsafe manner, the danger of which should have been readily observed by any reasonably prudent man. The element of safe place does...
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