Peterson v. Tacoma-Ashford Transit Co.

• Court: Washington Supreme Court
• Writing for the Court: MAIN, J.
• Citation: Peterson v. Tacoma-Ashford Transit Co., 170 Wash. 594, 17 P.2d 35 (Wash. 1932)
• Decision Date: 21 December 1932
• Docket Number: 24033.
• Parties: PETERSON v. TACOMA-ASHFORD TRANSIT CO.

17 P.2d 35

170 Wash. 594

PETERSON v. TACOMA-ASHFORD TRANSIT CO.

No. 24033.

Supreme Court of Washington

December 21, 1932

Department 2.

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

Action by Roy W. Peterson against the Tacoma-Ashford Transit Company, in which defendant filed a cross-complaint. From a judgment for plaintiff, defendant appeals.

Affirmed.

Guy E. Kelly and Thomas MacMahon, both of Tacoma for appellant.

G. C Nolte and Wesley Lloyd, both of Tacoma, for respondent.

MAIN J.

This action was brought to recover damages for personal injuries. The defendant presented an answer which contained three affirmative defenses and a cross-complaint. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of $2,500. Motions for judgment notwithstanding the verdict and, in the alternative for a new trial being made and overruled, judgment was entered, from which the defendant appeals.

The facts, which will present the question to be determined upon this appeal, may be stated as follows: The appellant Tacoma-Ashford Transit Company, is a corporation engaged in the business of operating automobile stages over certain highways in Pacific county and Lewis county. The principal place of business of the corporation and its repair shop are in the city of Tacoma. One stage line of the appellant operates between the town of Elbe, in Pierce county, and Lewis, in Lewis county. The respondent was the driver of this stage, and it was his duty to keep the same greased and cleaned, but he was not an expert mechanic. About ten days prior to November 17, 1930, the second leaf of the left front spring of the stage broke, and the respondent sent word of this fact to the repair shop in Tacoma, with the request that a new spring leaf be sent down. Two days Before the date the accident, the respondent was in Tacoma and called up the superintendent of the shop informing him that the spring leaf had not been received, and requesting that one be sent.

Some time during the afternoon or evening of November 16, 1930, while the respondent was driving the stage, he had difficulty with steering the same. It would turn to the right, but not to the left. He drove it into a garage in the town of Morton, through which his regular run passed, and the mechanic there tore down the steering gear to ascertain what the trouble was, and found that it was not defective. The broken ends of the spring leaf were protruding, and the mechanic wired these in place. He testified that he informed the respondent that it was the protruding ends of the broken spring leaf that were interfering with the mechanism of the steering gear and caused it to lock. This the respondent denied, and testified that he did not know that the broken spring leaf would interfere with the steering, and that, if he had known this fact, he would not have continued to operate the stage with the broken spring leaf.

On the morning following, November 17, 1930, while the respondent was driving the stage, after having left the town of Lewis that morning, the steering gear locked, the stage went off of the road, the respondent was seriously injured, and the stage substantially damaged. As indicated, the respondent brought the action to recover for the personal injuries that he sustained by reason of this accident. The appellant, by its cross-complaint, sought to recover the damages to the stage.

One of the affirmative defenses in the appellant's answer was that of assumption of risk. Upon the trial, the appellant called a number of witnesses who qualified as experts, and they testified that the broken spring leaf could not result in interfering with the steering gear of the stage. The appellant opens its argument with this statement: 'The defendant contends that the plaintiff [respondent] assumed the risk incident to his employment under the proof in this case'; and the entire argument of the appellant is devoted to this question. The question stated otherwise is whether the respondent, knowing that the spring leaf was broken, was chargeable, as a matter of law, with the danger that would result therefrom, in that the broken ends of the spring would interfere with the steering mechanism. In many instances, where the employee knows of the condition, he will be charged with knowledge of the danger that may result therefrom. In section 1147, Labatt's Master & Servant (2d Ed.) vol. 3, it is said: 'In considering whether the servant's action is barred on the ground of knowledge, the material question is not whether he was aware of the conditions which produced the danger, but whether he understood the danger itself. But in a large number of instances the conclusion that knowledge of the conditions cannot be imputed without also imputing knowledge of the attendant risks is so clearly unavoidable that, for practical purposes, the investigation is concerned only with the question whether the servant possessed the former find of knowledge.'

Upon this question, sections 1190 and 1191 of the same author are informative. There are other instances where the employee knowing of the condition, will not be held to be charged with the resulting danger. In Shoemaker v. Bryant Lumber & Shingle...