Nordstrom v. Spokane & Inland Empire R. Co.

• Decision Date: 05 November 1909
• Court: Washington Supreme Court
• Parties: NORDSTROM v. SPOKANE & INLAND EMPIRE R. CO.

104 P. 809

55 Wash. 521

NORDSTROM v. SPOKANE & INLAND EMPIRE R. CO.

Supreme Court of Washington, En Banc.

November 5, 1909

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Alof Nordstrom against the Spokane & Inland Empire Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Robertson & Rosenhaupt, for appellant.

Graves Kizer & Graves, for respondent.

MORRIS J.

The respondent was constructing an electric railway from Spokane to Waverly, and the appellant was in its employ as a lineman. It having been discovered that the insulators used in the holding of the trolley wire were defective, in that the lugs were too large, the linemen were instructed to saw them off. In doing this work the linemen worked in pairs, standing upon the tower cars and using a hack saw; one man sawing the lug on the right, and the other sawing the lug on the left of the insulator. In order to hurry the work along, the men worked overtime, for which they were correspondingly paid; and, when it became too dark to see otherwise, they were in the habit of using a lantern hanging it upon the trolley arm in such a way as to cause its light to shine on the lug. The men had been engaged in this work about five days, and they seemed to have had more or less trouble with the steel dust released in the sawing flying in their eyes, causing them annoyance, discomfort, and ofttimes pain. Whenever the dust would fly into the eye of one of the men, he would remove it himself, or obtain the assistance of his fellow workmen, or, if not then successful in obtaining relief, a trip would be taken to Spokane, and the services of an oculist obtained. The fact of the saw filings or dust getting into the eyes of the men was frequently discussed among them at their boarding house where they often assisted one another in its removal from the eye. The plaintiff was 26 years old, and had been employed as a lineman for about 6 years. Previous to that he had worked in roller mills and sawmills for about two years, and seems, so far as we can gather from the record, to have been a man of ordinary intelligence and knowledge of human affairs. On October 24th, at about 6 in the evening, while with his fellow lineman, McCoy, he was sawing a lug, some of the particles of steel released in the sawing flew, or were blown, into his right eye. He and McCoy endeavored to remove them, but, being unsuccessful and plaintiff suffering pain, on the following day a trip was taken to Spokane and an oculist consulted. Plaintiff was under treatment until December 15th, when the right eye was removed, the oculist being unable to reduce the inflammation and save the eye. Thereafter this action was commenced, resulting in the sustaining of a challenge to the sufficiency of the evidence and consequent dismissal. Error being alleged in the ruling of the court below in sustaining this challenge, the case is brought here on appeal. The complaint avers the negligence of the defendant in (1) directing the plaintiff to work in a dangerous place, without notice or instruction as to the danger; (2) in failing to furnish a proper tower car so as to raise the eyes of the lineman above the insulator; (3) permitting plaintiff's co-employé to saw on the insulator opposite him and throw dust into his eyes; and (4) in failing to supply plaintiff with glasses or goggles.

The case is somewhat novel in the history of the manner in which the injury was inflicted; but, although the industry of counsel and our own research have failed to find a parallel case, we think it yields as readily to the well-known and recognized rules of law applicable to the relation of master and servant as if it was a matter of common occurrence. When the relation of master and servant is sustained, the law implies and fixes upon each certain duties and responsibilities which are reciprocal in their nature. These duties, in so far as they relate to the case before us, are that the master shall furnish the servant with a reasonably safe place in which to work, and shall take the precaution of an ordinarily prudent man in keeping the place reasonably safe. He shall furnish the servant with proper tools and appliances that are reasonably safe for the use required of them, and use ordinary care in so keeping them. He shall in case of any latent or hidden danger known to him and unknown to the servant apprise the servant of the existence of such danger and the possibilities of consequent injury, and he shall employ such only as have sufficient intelligence to comprehend the danger, if any, of the situation. Having thus acted, he has fulfilled his full duty to his servant, and the servant, in his turn, takes upon himself the obligation of using such care and precaution for his own safety as an ordinarily prudent man would use under like circumstances, and assumes the risk of injury from obvious and apparent dangers, and the same force of reasoning which holds the servant to assume the risk of only obvious and apparent dangers releases the master from liability from dangerous conditions or situations of which he has no knowledge, or of which he could not acquire knowledge in the exercise of ordinary diligence on his part. Labatt states the rule thus: 'A person is not * * * answerable at law for a failure to avert or avoid peril that could not have been foreseen by one in like circumstances, and, in the exercise of such care as would be characteristic of a prudent person so situated, it is not negligence to fail to provide against an accident of such a nature that nobody could have foreseen it, and that no prudence could have anticipated the need of guarding against.' 1 Labatt, Master & Servant, § 142. The rule has been recognized in this court, and is thus succinctly stated in Daffron v. Laundry Company, 41 Wash. 65, 82 P. 1089: '* * * Where an employer places a guard sufficient to protect against all dangers reasonably to be anticipated, he is not guilty of negligence because the guard fails to protect against an unforeseen danger. * * *' The proximate cause of appellant's injury was the iron dust, released by his own saw or that of his fellow lineman McCoy, either being blown into his eye by the wind or propelled and thrown by the movement of the saw. It appears that this was a common happening. The linemen frequently assisted each other in removing this dust from their eyes. They talked about it shile not at work. They apparently all knew about it, and realized the probability of its occurrence. It was then, in so far as it was a danger, an open, apparent, and obvious one. It was a danger naturally incident to the work being done. It was one of the usual and ordinary risks of of such employment, and, as such, fell within the character of risks assumed by the servant. It will not do for the servant to say that, while he knew the flying dust would enter his eye, he assumed it would only cause momentary discomfort or pain, or, at the most, necessitate a visit to an oculist. This is a plea of knowledge of the danger, but not of its consequences--a doctrine which the law does not recognize. A man might as well say he knew, if his hand came in contact with a moving saw, it would cause him pain and injury, but he did not realize it might cause the loss of his hand. Knowledge of a danger is in law knowledge of the injurious results naturally and proximately flowing from that danger.

Appellant is a man of ordinary intelligence, of some experience in sawmills, iron, or steel roller mills, and six years as a lineman working upon telephone, telegraph, and other electric current wires. It must be a matter of common knowledge to such a man that sawing iron lugs would create iron dust; that this iron dust would fly with the wind, or be thrown or forced by the movement of the saw; that flying dust would enter the eye if sufficiently near; that iron dust entering the eyes might result in an injury the nature and extent of which from the wellknown delicate structure of the eye no man could foresee. We therefore believe this...