Rogers v. Valk

• Decision Date: 04 April 1913
• Citation: 72 Wash. 579,131 P. 231
• Court: Washington Supreme Court
• Parties: ROGERS v. VALK.

131 P. 231

72 Wash. 579

ROGERS v. VALK.

Supreme Court of Washington

April 4, 1913

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

Action by William A. Rogers against Albert Valk. Judgment for plaintiff, and defendant appeals. Affirmed.

Davis &amp Rhodes, of Spokane, for appellant.

Fred M Williams and R. M. Webster, both of Spokane, for respondent.

ELLIS J.

This is an action for personal injuries. In November, 1910, the defendant, Valk, entered into a contract with defendant Spokane school district No. 81 for tearing down and removing the ruins of a brick high school building which had been partially destroyed by fire. For the prosecution of the work about 75 men were employed by the defendant, under the superintendence of a foreman. Among these, the plaintiff, a common laborer, began work on the 12th day of November. The fire had destroyed a large part of the floors, but had left of the third floor, in the southeast corner of the building, a part covering a space which, so far as we are able to gather from the evidence, was about 20 feet square and supported by the south and east walls of the building on two sides, while the inner part was sustained by a chimney, which had originally extended from the basement through the roof of the building, and was located at or near the inner corner of the remaining piece of floor. Two witnesses testified that the floor was supported also on the west side by an inner partition wall. While this remaining floor seems to have been damaged by fire, it was apparently considered by the foreman and the laborers as sufficiently strong for the men to work upon in removing parts of the wall above it and fragments of roof. The roof of the building had consisted of timbers overlaid with slate, and there was a part remaining at the southeast corner after the fire which had been the covering over a dormer closet or window. This remnant of roof was sustained by a main rafter, called a 'hip' rafter, extending about 16 feet over the third floor, and at a distance above the floor variously estimated at from 10 to 15 feet. As a part of the equipment for the work, the defendant had on the ground and in general use a wire cable of sufficient length to reach to the top of the walls, and operated by a team of horses and a capstan or drum, which cable was used to pull down the brick walls or portions thereof. Shortly prior to the accident complained of the foreman had caused this cable to be adjusted to the fragment of roof, above mentioned, intending to pull it down, but, fearing that by reason of the timbers being firmly attached to the outer wall or gable of the dormer the wall would also be thrown down, caused the cable to be removed, and sent a laborer to cut away the main or hip rafter and the upright supports of the dormer roof. Late in the afternoon of November 21st, the ninth day of the plaintiff's employment, and while he was at work on the third floor above mentioned, the foreman came up and directed the plaintiff and some fellow laborers to throw a rope over the end of the main rafter, which projected diagonally over the floor, and by means of the rope to pull the fragment of roof down. The evidence fairly shows that the foreman instructed the plaintiff to secure a particular rope, and where to find it and use it for pulling down the roof, and thereafter immediately went below. The plaintiff procured the rope as directed, and he and two fellow laborers, after some difficulty, placed the rope over the end of the rafter, and then, standing on the floor with the plaintiff nearest the middle of the floor, the three together pulled on the rope, and the roof fell, carrying with it a part of the outer brick wall or gable. Under the weight of this roof and the mass of bricks the floor gave way and fell through the two floors below to the basement, carrying the plaintiff with it and inflicting the injuries complained of. At the close of plaintiff's evidence a motion for nonsuit was made and overruled. The verdict was for the plaintiff. Each of the defendants moved for judgment notwithstanding the verdict. The motion of the school district was granted. That of the defendant Valk was denied. Judgment was entered upon the verdict, and he has appealed.

The appellant has made 10 assignments of error, but they are all directed to, argued, and may be by us considered, under three heads. It is argued (1) that there was no evidence of negligence or any violation of duty on the appellant's part; (2) that the respondent assumed the risk of the danger which resulted in his injury; (3) that the respondent was guilty of contributory negligence.

The negligence charged was that the appellant failed to exercise reasonable care to furnish the respondent a reasonably safe place in which to work, and that the plan of work adopted was unnecessarily dangerous. The appellant contends that the safe place doctrine is not applicable where the conditions of work must, of necessity, be constantly changing, as in the tearing down of an old building. Two cases are cited in which the doctrine is broadly stated that 'the work of tearing down an old building * * * is almost necessarily attended with danger, and in such case the rule that it is incumbent on the master to furnish to the servant a reasonably safe place in which to work does not apply as in ordinary cases.' Western Wrecking & Lumber Co. v. O'Donnell Adm'r, 101 Ill.App. 492, 498; Merchant v. Mickelson, 101 Ill.App. 401. While the rule thus broadly stated is supported by these and many other authorities from other jurisdictions which might be cited, it has never been adhered to by this court, and seems to us as indefensible in logic as it is pernicious in practice. It ignores the humane considerations which underlie the rule. The safe place doctrine is the correlative of the doctrine of assumption of risk. The one cannot be defined without a clear apprehension of the scope of the other. The servant assumes those risks which are open and obvious and necessarily incident to the work, but only those. The master is chargeable with the result of dangers by him unnecessarily injected into the work or place of work. The safe place doctrine simply stated is just this: It is the duty of the master to exercise reasonable care, considering the nature of the work in hand, to eliminate from the place of work unnecessary dangers; that is to say, it is his duty to use reasonable care to make and keep the servant's environment reasonably safe, so far as compatible with the practical performance of the work. It seems neither logical nor humane to hold...