Simila v. Northwestern Imp. Co.

• Decision Date: 28 April 1913
• Citation: 131 P. 831,73 Wash. 285
• Parties: SIMILA v. NORTHWESTERN IMPROVEMENT CO.
• Court: Washington Supreme Court

131 P. 831

73 Wash. 285

SIMILA v. NORTHWESTERN IMPROVEMENT CO.

Supreme Court of Washington

April 28, 1913

Department 2. Appeal from Superior Court, Pierce County.

Action by Jacob Simila against the Northwestern Improvement Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

Gordon Easterday & Askren, of Tacoma, for appellant.

Geo. T Reid, J. W. Quick, and L. B. da Ponte, all of Tacoma, for respondent.

FULLERTON, J.

This action was brought by the appellant against the respondent to recover for personal injuries. The respondent owns and operates a coal mine located near Melmont, in Pierce county. The appellant was an employé in the mine. In passing to and from his boarding place and his place of work, the appellant was obligated to travel for the greater part of the way along the track and right of way of a railroad company; there being no other open way between the two places, and seemingly no other place where board could be had without making use of this particular way. In and about the underground workings of the mine, the respondent used props, lagging, gangway sets, and other timbers, which it obtained from its own property situated on the side of a mountain sloping upwards from the railroad track and about 500 feet therefrom. The timbers were brought to the railroad track by means of a gravity slide, an open-topped, through-shaped chute, extending from the place where the timbers were cut to the railroad right of way; the end of the chute stopping about ten feet short of the nearest rail and about five feet above the ground. The appellant while passing along the track to his place of work, was struck and severely injured by a piece of timber which came down the chute.

In his complaint the appellant alleged facts which tended to show that his injuries were caused by the negligence of the persons getting out the timbers, and these he alleged to be the agents and servants of the respondent. In its answer the respondent denied generally the allegations of the complaint and for an affirmative answer alleged 'that whatever injury the plaintiff received at the time and place mentioned in his complaint was in no manner caused by the carelessness and negligence of this defendant, or any of its agents, servants, or employés, but was caused by the carelessness and negligence of the said plaintiff in failing to exercise ordinary care and caution for his own safety and protection,' but no other or further affirmative defense was pleaded. At the conclusion of the trial, the respondent moved for an instructed verdict on the ground that the negligence, if any, which resulted in the injury to the plaintiff was the negligence of the independent contractor and not the negligence of the respondent. This motion the trial judge sustained and entered a judgment against the appellant to the effect that he take nothing by his action.

The evidence introduced by the respondent to prove that the persons getting out the timbers were independent contractors was introduced over the appellant's objection, and the appellant now insists that its admission was error requiring reversal because not set out as an affirmative defense in the answer. The appellant admits that there is considerable authority in support of the rule that evidence of the relationship of independent contractor may be given under a general denial; but it is contended that the cases so holding are not in harmony with the spirit of our Code and contrary to cases from this court involving similar principles. Undoubtedly it is the spirit of the Code that the pleadings should reflect the contentions of the parties, and this court has many times said that a distinctive affirmative defense cannot be given in evidence over objection under a general denial. But is the showing that a person causing an injury and alleged to be the agent or servant of another was not such agent or servant the showing of an affirmative defense? It seems to us that it is not. The appellant, in order to state a cause of action against the respondent, was obligated to allege that the injuries for which he sought to recover were inflicted upon him by persons for whose acts the respondent was responsible. The respondent was entitled to put in issue the allegation and in case the appellant sought to sustain it by proofs to offer in evidence counterproofs and it seems to us clear that it is legitimate counterproof to show the actual relations existing between it and the persons for whose acts it is asserted to be responsible. It must be remembered also that the appellant did not point out in his complaint the particular persons whom he expected to show caused his injury; his allegation was general in that respect. We think it was competent, therefore, for the respondent to deny the allegation generally, and, when the appellant pointed out the particular persons whom he charged represented the defendants, to show that such persons were not its representatives, but were persons operating on their own initiative, or, in other words, were independent contractors. No case has been pointed out to us from our own decisions which determines the precise question; nor do we think those relied upon by the appellant sustain the principle contended for. Cases that seem to us to be more closely analogous and which oppose the principle are the following: Kerron v. North Pacific, etc., Mfg. Co., 1 Wash. 241, 24 P. 445; Chamberlin v. Winn, 1 Wash. 501, 20 P. 780; Carkeek v. Boston National Bank, 16 Wash. 399, 47 P. 884; Peterson v. Seattle Traction Co., 23 Wash. 615, 63 P. 539, 65 P. 543, 53 L. R. A. 586; Harvey v. Ivory, 35 Wash. 397, 77 P. 725; Coey v. Low, 36 Wash. 10, 77 P. 1077; Chrast v. O'Connor, 41 Wash. 360, 83 P. 238; Shine v. Culver, 42 Wash. 484, ...