Olson v. Erickson

• Decision Date: 10 June 1909
• Citation: 53 Wash. 458,102 P. 400
• Court: Washington Supreme Court
• Parties: OLSON v. ERICKSON.

102 P. 400

53 Wash. 458

OLSON v. ERICKSON.

Supreme Court of Washington

June 10, 1909

Appeal from Superior Court, King County; ArthurE. Griffin, Judge.

Action by Mattis Olson against C.J. Erickson. From a judgment for plaintiff, defendant appeals. Reversed, and remanded for rendition of a judgment for a less sum for plaintiff if he consents thereto, and, if not, a new trial is awarded.

Brightman & Tennant, for respondent.

FULLERTON J.

The respondent brought this action against the appellant to recover for personal injuries received by him while in the appellant's employment. The jury returned a verdict in his favor for the sum of $2,000. Judgment was entered on the verdict, and this appeal was taken therefrom.

At the time of the accident to the respondent, the appellant was excavating a street in the city of Seattle with a steam shovel. The engine and other mechanism by which the shovel was operated was carried on a car placed on trucks running on rails, similar to the trucks and rails of an ordinary railway. The scoop, or shovel itself, was arranged to operate in front of the car. The method of operation was to lay a track in front of the body of earth it was desired to remove excavate everything within reach of the scoop, and then extend the track over the excavated portion, move the car up against the bank, and repeat the process. The engine operating the scoop was connected with the trucks by means of chains fastened to the axles. By exerting pressure on these chains, the car could be moved for short distances either way by means of its own power. At the place of the accident to the respondent, the grade was somewhat steep, with the car on the upper side of the grade. The car was held in place while the scoop was being operated by blocks laid across the rails in front of the wheels of the trucks and fastened to the rails by means of clamps. When it was desired to move the car, pressure on the blocks would be removed by means of the engine. The workmen would then loosen the clamp, move the block back the required distance, and fasten it with the clamp, when the car would be let down slowly by the engineer into the new position. The work was done under the direction of a foreman. It was his duty to observe the conditions and give the order for moving the blocks and the order to the engineer to let the car down at the proper times. It was customary, also, for the engineer to give a signal just before moving the car. It was a part of the respondent's duty to move one of these blocks. At the time he received the injury, the strain was taken off the blocks by the engineer and he was signaled to move the block back. He obeyed the signal and was in the act of moving the block to the required place when the car, without the customary signal being given and before he succeeded in getting the block in position to clamp, was suddenly moved towards him. In his effort to get out of the way, he was caught by an iron brace extending from the car and pinned by it to the ground, receiving the injuries for which he sues.

The appellant first assigns that the court erred in refusing to grant a nonsuit on the ground of contributory negligence on the part of the respondent. It is argued that the respondent brought the danger upon himself by the unskillful manner in which he performed his work, and a number of acts of commission and omission on his part are pointed out which it is asserted contributed to his injury; but the appellant is viewing the accident retrospectively. It is an easy matter, after an accident happens, to discern ways by which it could have been prevented or avoided, and ways by which its victim could have avoided injury had he but had the presence of mind to have pursued them. The injured person's right to recover, however, is not measured by these tests. He is not to be found guilty of contributory negligence merely because there were ways of escape open to him which he could have pursued. The test is: Did he act as a reasonably prudent person would have acted under similar circumstances? And this question is usually one for the jury, and not the court. It was so in the present case. From the record as we read it we cannot say as a matter of law that the defendant did not act with reasonable prudence. It may be that we would hold that he did not so act were the question one for us to determine from the preponderance of the evidence; but, since it is one on which reasonable minds might reasonably differ, it was for the jury, and their finding is conclusive upon us.

It is next contended that the foreman in charge of the work, and who directed its different operations, was a fellow servant of the respondent, and hence the master is...