Rosellini v. Salsich Lumber Co.

• Decision Date: 06 December 1912
• Court: Washington Supreme Court
• Parties: ROSELLINI v. SALSICH LUMBER CO.

128 P. 213

71 Wash. 208

ROSELLINI v. SALSICH LUMBER CO.

Supreme Court of Washington

December 6, 1912

Department 1. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by Emillina Rosellini against the Salsich Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Hudson Holt & Harmon, of Tacoma, for appellant.

Bates Peer & Peterson, of Tacoma, for respondent.

CHADWICK J.

Guiseppe Rossllini and some 12 or 14 others composed a track gang, and were going from one point to another on hand cars on defendant's logging road. The first car (there were two of them) carried the foreman of the work. The road ran down a grade, describing a curve, and then up a grade on the other side. Just as the second car reached the bottom of the grade, and, as is most likely, the crew began to pump for the ascending grade, the hand car left the track, throwing Rosellini to the ground with such violence that he was killed almost instantly. Just after the accident, one of the brasses upon the boxing of one of the front wheels of the hand car was picked up by one of the workmen; it having fallen out just before or at the time the car left the track. This action was brought by Rosellini's widow, and from a verdict in her favor, defendant has appealed.

Negligence is alleged in that the hand car was 'old, worn out, defective, and in want of repair to such an extent that the whole mechanism, running gear, braces, boxing, and bed were loose and rickety, rendering said car unsafe, and making it extremely dangerous for persons to ride upon it.' It is contended that the court erred in admitting evidence that the boxing came, out, inasmuch as respondent had not proved that the car was defective in any way as alleged in the complaint. Without following appellant's argument, we think it is enough to say that, in our judgment, there was evidence tending to show that the car was out of repair. The testimony offered was relevant to the issue submitted by the complaint. No error prejudicial to the appellant resulted therefrom.

Appellant relies principally upon two propositions of law; (1) That the doctrine of res ipsa loquitur does not apply, and (2) that the cause of the accident is not shown. We shall not follow the very able brief submitted on behalf of appellant, for, as the case presents itself to us, it may be better answered by a general discussion. The real basis of appellant's argument can be found in proposition 2, section 2509, Wigmore on Evidence, quoted in Lynch v. Ninemire Packing Co., 63 Wash. 423, 115 P. 838: 'Both inspection and user must have been at the time of the injury in the control of the party charged.' In other words, the jury, having found the instrumentality contributing to the accident to be defective, was its character such, considering its use, as to relieve appellant of the duty of inspection? In Cole v. Spokane Gas & Fuel Co., 66 Wash. 393, 119 P. 831, we said: 'The rule seems well established that an instrument of simple structure, presenting no complicated question of power, motion or construction, and intelligible in all of its parts to the dullest intellect, does not come within the rule of safe instrumentalities,for there is no reason known to the law why a person handling such instrument and brought in daily contact with it should not be chargeable equally with the master with a knowledge of its defects.'

But that case voices an exception to the general rule, that is, the primary duty of inspection or of furnishing a safe instrumentality for doing the work is upon the master; and no contrary presumption arises unless it is shown by competent evidence that the duty is upon the servant in a given case, or that the character of the instrument and the manner of its use were such as to charge the servant with a knowledge of its defects.

In this case a permissive rather than a positive duty of keeping the car in order was shown, if any duty was shown, and respondent is entitled to recover unless we can hold as a matter of law that a hand car is an instrumentality of such simple construction as to shift the duty from the employer to the employé. W...