Stanke v. Spokane, Coeur D'Alene & Palouse R. Co., 25323.

• Decision Date: 11 April 1935
• Docket Number: 25323.
• Citation: 181 Wash. 472,43 P.2d 961
• Court: Washington Supreme Court
• Parties: STANKE v. SPOKANE, COEUR D'ALENE & PALOUSE RY. CO.

43 P.2d 961

181 Wash. 472

STANKE v. SPOKANE, COEUR D'ALENE & PALOUSE RY. CO.

No. 25323.

Supreme Court of Washington

April 11, 1935

Department 2.

Appeal from Superior Court, Spokane County; Fred H. Witt, Judge.

Action under the Federal Employers' Liability Act by Elmer Stanke against the Spokane, Coeur D'Alene & Palouse Railway Company. From a judgment setting aside verdict for plaintiff and dismissing the action, plaintiff appeals.

Affirmed.

Tustin & Chandler, of Spokane, for appellant.

E. E Sargeant and William Ennis, both of Spokane, and Charles S Albert, of Seattle, for respondent.

BLAKE, Justice.

This is an action brought under the Federal Employers' Liability Act. Defendant operates an electric railway system in eastern Washington and northern Idaho. Plaintiff, for more than twenty years prior to his injury, had been employed as a wireman on the system. On April 24, 1933, while engaged in his occupation as such, he came in contact with a high-voltage wire and sustained injuries, which he alleges to be the result of negligence on the part of defendant. Answering the complaint, defendant denied negligence, and set up, by way of affirmative defenses, contributory negligence and assumption of risk. Upon trial of the issues thus made, a jury returned a verdict for plaintiff. Defendant interposed motions for judgment notwithstanding the verdict and for new trial. The court granted the former motion, and denied the latter. From judgment entered dismissing the action plaintiff appeals.

Since under the Federal Employers' Liability Act (45 USCA §§ 51-59), contributory negligence does not bar recovery, we are concerned with only two questions: (1) Was respondent negligent; and (2) was appellant's injury the result of an assumed risk? In order to answer these questions, a somewhat detailed statement of the facts must be made.

The shops and offices of the respondent are in Spokane. Appellant lived in Spokane. E. L. Blaine was superintendent of respondent's electrical substations. The respondent maintained one such substation at Rosalia. For several weeks prior to April 24, 1933, this substation was wired to carry a current of 13,000 volts. April 24th was a Monday. The preceding Friday, Blaine called appellant on the telephone at Spokane, and directed him to go to Rosalia on Monday and change the wiring in the substation so as to step the current up from 13,000 volts to 45,000 volts. Appellant was thoroughly familiar with the procedure necessary to accomplish that result, and thoroughly competent to do the work. He had, in fact, stepped the current down from 45,000 volts to 13,000 volts in the same substation on the preceding March 9th. According to instructions, he left Spokane by automobile about 8 o'clock a. m., arriving at Rosalia some time after 9. He parked his car and proceeded to carry his tools to the substation, some 300 feet away. He had made one trip and was making a second with his final load of tools, when he observed the work train, or tower car, approaching from Spokane. He went on into the substation.

Before following his movements further, we think it desirable to describe here, as accurately as we can, the interior of the switch-room where the work was to be done. It was a room 15 feet wide and 30 feet long; the latter being the east and west dimension. The only entrance to the building was approximately in the middle of the east wall. The door to the entrance swung in and to the south. To the left, as one entered the room, there was what was called a table, or platform. This platform was an L-shaped wooden structure. It was 8 feet long, extending to the south wall of the room. The upright part (or back) was 4 feet high, and the floor was 3 1/2 feet wide. The structure weighed approximately 300 pounds. It was designed to protect persons, moving about the room, from coming in contact with two oil switches and two high-tension wires which were on the east wall of the room and south of the doorway. The upright part of the L was adjacent to the oil switches and wires just mentioned. The handles of the oil switches extended through holes in the upright part of the L, so that one could stand on the floor of the platform and open or disconnect the oil switches without danger of coming in contact with them or the high-tension wires. When the door of the room was open, it swung back against the platform in such manner as to form a complete barricade to these oil switches and high-tension wires. The high-tension wires in question extended perpendicularly down the east wall, into the oil switches, from what were called the east and west trolley disconnecting switches. The latter were on the east wall of the room about twelve feet above the floor. There was a tie switch between the east and west trolley disconnecting switches.

A little to the north of the center of the room was what was called the circuit breaker. This was controlled by the opening and closing of an oil switch. On the north wall of the building were two knife switches, by the opening of which the 45,000 volt line could be cut out. On the south wall, there were similar switches on the 13,000 volt line. These switches were high above the floor, and had to be opened and closed by using a 12-foot bamboo pole. Up near the ceiling, and about 3 feet from the south wall, extended (from east to west) what was called the 45,000 volt bus line. As we understand it, in order to step the current up, it was necessary to connect this bus line with the 45,000 volt line of the north wall. In order to do this, it was necessary that the circuit breaker and the switches on the 45,000 and 13,000 volt lines be opened.

Upon entering the switchroom after observing the approach of the tower car, Stanke opened the circuit breaker; opened the knife switches on the north and south walls; closed the tie switch between the east and west disconnecting trolley switches on the east wall; and opened the oil switch beneath the west disconnecting switch. This was the northerly of the two oil switches, the handles of which extended through holes in the upright part, or back, of the platform. In order to open these switches, he stood on the floor of the platform. As he was starting to open the southerly of these oil switches, Blaine came into the room, followed by two men carrying a ladder. One of these men, McLean, was Stanke's helper. All three had come down from Spokane on the tower car.

According to appellant, Blaine entered the room with a rush, and said: 'They have got the base done for the motor for Palouse. We must hurry and get this job done because tomorrow we have to go to Palouse to put the motor in the elevator. They are coming with the ladder, let's pull this platform out.'

Thereupon Blaine, Stanke, and McLean pulled the platform barrier away from the oil switches out toward the middle of the room to a point where the ladder could be set up for the work of making the connection with the 45,000 volt bus line. The base of the ladder rested on the floor of the platform, and the top against the south wall. McLean ascended the ladder. It was found to be necessary to melt solder from the wire on which McLean was working. This had to be done with a blow torch. Stanke lighted the torch, carred it up the ladder and handed it to McLean. Of what occurred after he descended the ladder and stepped on the floor of the platform, he has no recollection. McLean saw him step off the platform, walk around behind it (between it and the east wall), where a moment later he came...