Parr v. City of Spokane

• Decision Date: 07 February 1912
• Citation: 121 P. 453,67 Wash. 164
• Court: Washington Supreme Court
• Parties: PARR et al. v. CITY OF SPOKANE.

121 P. 453

67 Wash. 164

PARR et al. v. CITY OF SPOKANE.

Supreme Court of Washington

February 7, 1912

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Margaret Blair Parr and others against the City of Spokane. From a judgment for plaintiffs, defendant appeals. Affirmed.

Cannon, Ferris, Swan & Lally and A. M. Craven, for appellant.

Dewart & Fouts, for respondents.

GOSE J.

The plaintiffs, the widow and minor children of George Wesley Parr, deceased, brought this action to recover damages arising from his death, alleging that he lost his life in consequence of the defendant's negligence while in its employ. There was a verdict and judgment for the plaintiffs. The defendant has appealed.

The appellant at the time of the happening of the accident was engaged in the construction of a concrete bridge across the Spokane river at Monroe street. The plan adopted required the erection of high concrete piers. The piers on the south side of the river had been built up to a height of about 47 feet. In carrying on the work, the concrete was placed in wooden forms. These forms were six to eight feet in height, eight feet in width, and about seventeen feet in length, and rested on the top of the piers. They were made of heavy timbers, set transversely, to which were nailed or spiked smaller timbers placed vertically, and to these were nailed light boards or planks, thus forming a box-shaped receptable, open at both ends. The larger timbers were held together by rods, passing from side to side, and fastened by nuts and washers. The concrete was emptied into the forms, and put in place by men within. After the concrete had hardened, the forms were removed. The concrete was mixed on the north side of the river, where it was emptied into buckets weighing about three tons when filled. These buckets were then elevated to an overhead cable, and carried to a point directly above the forms by means of a traveler running upon the cable; the power being supplied by an engine on the north side of the river. The cable was about 100 feet above the forms, and attached at either end to a tower. The bucket was attached to the traveler by a cable running through a block and tackle and was controlled by the engine. A signal man stood upon a platform between the piers at the south side of the river, which was so elevated that he could see into the forms. The signals were given by means of a telephone. When the bucket reached a point immediately above the forms, he gave a signal to the engineer to stop the traveler, and then gave him a second signal to lower the bucket into the forms. A short time before the accident, the deceased had been directed by one of the foremen to remove certain wooden braces at the base of the east pier, and was engaged thereat when he was killed. His death was caused in this manner: The signal man gave the signal to lower the bucket, and it was lowered into the form while swinging, thus causing it to strike the end of the form, breaking it loose and precipitating it upon the deceased, causing his death.

At the close of the respondents' evidence, the appellant moved for a nonsuit, and, after all the evidence was submitted, it moved for a directed verdict. After return of the verdict, it moved for a judgment notwithstanding the verdict. The denial of these motions raises the first and principal question presented by the appeal. The appellant contends that there is no evidence of negligence. On the other hand, the respondents' position is that the jury was warranted in finding that it was negligence to lower the bucket into the form while it was swinging. The evidence touching this question is as follows: A Mr. Beardsley, the foreman for the appellant in the construction of the forms, was introduced as a witness by the respondents, and asked what caused the form to fall. He answered: 'The bucket struck it and knocked it down.' He was then asked: 'Was that bucket controlled by signals?' and answered: 'Yes, sir. He controlled it as far as he could, and the bucket came down swinging and knocked it down.' Mr. McCartney, the city engineer and superintendent in charge of the work, testified in behalf of the appellant that the signal man stood upon a platform between the two sough piers so that he could see into the forms; that, when the bucket reached the desired position, he gave the engineer a signal to stop the carriage, and that, when this signal had been obeyed, he gave a signal to lower the bucket into the form. He was then asked what the result would be if the bucket was swinging when it reached a point near the form, and answered: 'In that case, the signal man would give the signal for the bucket to stop, and that bucket most always would swing when it would reach that point, and the signal man would give his signal to stop it.' The next question propounded was: 'That is, the engineer would stop his engine?' The answer was: 'The engineer would stop his engine; yes. In this case the bucket wasn't stopped until it got inside the form.' Another witness introduced by the appellant was asked the question whether there was any way to keep the bucket from swinging, and answered: 'Not that I know of.' This witness also stated that the bucket had a swing of approximately ten or twelve feet, but that he could not estimate it 'within four or five feet.'

It seems clear to us from this testimony that the jury had abundant warrant for finding the appellant guilty of negligence. The reasonable interpretation of the testimony of the superintendent is that the failure of the signal man to give a stop signal before the bucket reached the form was the proximate cause of the death of the deceased. It must have been apparent to him that, with the swing which the bucket had developed, it would strike the form if lowered into it at that time. He knew the approximate weight of the bucket, and it was his plain duty to stop it until its motion had been sufficiently arrested to make it reasonably safe to lower it into the form.

The appellant does not meet the issue by saying that it does not know what caused the bucket to develop so wide a swing at the time in question, and that it does not know how its motion could have been arrested. It cannot plead ignorance of simple natural laws. Common observation and experience...