Richardson v. City of Spokane

• Decision Date: 26 March 1912
• Citation: 122 P. 330,67 Wash. 621
• Parties: RICHARDSON v. CITY OF SPOKANE.
• Court: Washington Supreme Court

122 P. 330

67 Wash. 621

RICHARDSON v. CITY OF SPOKANE.

Supreme Court of Washington

March 26, 1912

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Dewitt Clinton Richardson against the City of Spokane. From a judgment for plaintiff, defendant appeals. Affirmed.

Where a verdict in favor of an injured servant was based on a finding that the master was negligent in failing to provide a reasonably safe place for work, a negative answer to the special question, "Is a master required to anticipate the negligence of his servant and the result of that negligence to a fellow servant?" did not require a judgment in favor of defendant notwithstanding the verdict.

Cannon Ferris, Swan & Lally, for appellant.

Nuzum &amp Nuzum and Geo. H. Armitage, for respondent.

ELLIS J.

This is an action to recover damages for personal injuries, suffered by the plaintiff while in the employ of the city of Spokane in the construction of a concrete bridge across the Spokane river at Monroe street in that city. Many men were employed in the work. The carpenters and carpenters' helpers, who were constructing the wooden forms for the piers and arches of the bridge, were under one foreman. The men who mixed, poured, spread, and tamped the concrete into the forms when completed were known as concrete men, and were divided into several gangs according to their places of work. Each concrete gang was under a subforeman, and all under a head concrete foreman. The whole work was under the direction of a superintendent. The plaintiff was employed as one of the concrete men. While at work in a hole or pocket formed by parts of the wooden forms for a pier and an arch, into which place he had been ordered by his immediate foreman, a peavey, used by one of the carpenters' helpers at work upon the arch, fell upon him, crushing his skull. The negligence charged was failure to use reasonable care to provide and maintain a safe place of work for the plaintiff, and failure to warn him that men would be set to work upon the arch or span above him, thus rendering his place of work dangerous. At appropriate times the defendant interposed motions for a nonsuit, for a directed verdict, and for judgment notwithstanding the verdict. These were overruled, and a judgment was entered upon the verdict of the jury for $15,000 and costs. The defendant has appealed.

The appellant's first contention is that the trial court erred in denying the motions for a nonsuit, for a directed verdict, and for judgment notwithstanding the verdict. The argument in support of this contention is directed to an answer to the inquiry: Is a master required to anticipate the negligence of his servant and the result of that negligence to a fellow servant? Of course, the answer to the question thus broadly put would usually be in the negative. But the question does not present the actual issue on the facts before us. The real issue is better presented by the following questions: Was the master guilty of negligence in failing to use reasonable care to provide a reasonably safe place for the servant's work, and in failing to maintain it in a reasonably safe condition? If it was, then was the injury the result of that failure as the proximate cause? That it is the positive duty of the master to exercise reasonable care to furnish a safe place of work, and that the duty is a continuing one, has so often been stated by this and other courts as to require no citation of authority. The divergence of the adjudicated cases is found, not in any real difference of opinion as to the nature or scope of the rule, but in determining what in a given case is reasonable care. That is necessarily a relative question to be determined by the nature of the work, the imminence of the danger, the consequences to be anticipated, and all the conditions, circumstances, and surroundings. These are matters resting in evidence. This, like every other question of negligence, whether primary or contributory, is a question for the jury, whenever under the evidence the court cannot say that the minds of reasonable men may not honestly differ thereon. Richmond v. Tacoma Ry. & Power Co., 122 P. 351, decided March 13, 1912. It is not our duty to weight the evidence, nor to pass upon its credibility. We can do neither without invading the province of the jury. We may only take the facts most favorable to the respondent as developed by the evidence, apply the law thereto, and determine whether such facts are sufficient in law to sustain the verdict.

There was evidence from which the jury might have found the following facts: That the respondent was, at about 8 o'clock in the morning, ordered by his immediate superior, the city's subforeman of the particular concrete gang in which respondent was employed, to go with another man to the bottom of a hole or pocket, about 25 feet deep, between 5 and 6 feet long, and about 2 feet wide, inclosed by the wooden walls of the forms for a concrete pier and arch, and there clear out concrete which had fallen into certain drains at the base of the pier and arch; that after rising from the bottom of the hole some few feet, the wooden wall on one side passed out in a wide curve, making a part of the form for a proposed concrete arch, and forming a curving wooden incline leading directly into the pocket; that any tool or other object dropped or escaping from men at work upon this incline, whether by unavoidable accident or otherwise, would inevitably slide down it directly into and fall to the bottom of the pocket; that in the absence of a screen or barrier across the incline near where it approximated the perpendicular and formed the pocket, the bottom of the pocket, though reasonably safe at other times, was an exceedingly dangerous place in which to work while men were at work upon the arch above; that such a barrier could easily have been placed so as to avoid all danger from falling objects to those working in the pocket; that no such barrier was provided, and no one was ordered to place any protection over the pocket; that all of these things were patent and obvious to any one. There was also evidence from which the jury might have found that there were no men at work upon the span or arch when the respondent and the man with him were sent into the pocket; that they received no warning that men would be placed to work upon the arch while they were there; that the respondent at the time of the injury was loosening with a pick concrete which had fallen into the drains in the bottom of the pocket, while the other man with him was shoveling the débris into a bucket lowered from the top by a third man, who would draw the bucket up with a rope; that the noise made by these two men working in this confined resonant space was such as to prevent them from hearing the men at work upon the arch above and some 50 or 60 feet distant; that the hole was so deep that they could not see the men on the arch; and that they had no knowledge that men were at work there or would be while the respondent and his companion were in the pocket. The appellant introduced evidence contradicting all, or nearly all, of these things; but it was for the jury to say what evidence was most credible and convincing, and which witnesses were to be believed. There was no conflict in the evidence that about 11:30 o'clock in the forenoon of the day in question, while the defendant was on his knees loosening the concrete in the drains with a pick, a peavey escaped from one of the carpenters' helpers at work in placing forms upon the arch, slipped down the incline of the arch, fell into the pocket, and, striking the respondent upon the left side of the top of the head, inflicted the injuries complained of; that the men upon the arch were using heavy tools such as peavies, adzes, hammers, iron mallets, and saws, and handling timbers. Upon all of these facts, of which there was ample evidence which the jury might believe, we cannot say as a matter of law that the jury could not find the master negligent.

Taking these things as true, the place of work was safe when the respondent went to work. Conditions were changed so as to make the place extremely dangerous, by the master...