Williams v. City of Spokane

• Decision Date: 28 April 1913
• Citation: 131 P. 833,73 Wash. 237
• Court: Washington Supreme Court
• Parties: WILLIAMS v. CITY OF SPOKANE.

131 P. 833

73 Wash. 237

WILLIAMS v. CITY OF SPOKANE.

Supreme Court of Washington

April 28, 1913

Department 2. Appeal from Superior Court, Spokane County.

Action by Walter Williams against the City of Spokane. Judgment for plaintiff, and defendant appeals. Affirmed.

Cannon Ferris & Swan and A. M. Craven, all of Spokane, for appellant.

Samuel T. Crane, Robertson & Miller, and T. J. Corkery, all of Spokane, for respondent.

ELLIS J.

This is an action for personal injuries claimed to have been suffered by the plaintiff through the negligence of the defendant City of Spokane, in connection with the construction of the Monroe Street Bridge in that city. The bridge was being constructed by day labor, and the plaintiff was one of the bridge carpenters employed upon the work. The southerly span of the bridge consisted of concrete piers, which were being built by pouring the concrete into forms of wood. These forms were constructed in sections 16 feet long by 8 feet high in the following manner: The boards which formed the inner surface against which the concrete was poured were spiked or bolted to 2 by 8 inch timbers, placed edgewise against the boards, and back of these were two 8 by 8 inch timbers spiked or bolted to the 2 by 8's to which the boards were nailed. Each of these sections weighed about 1,400 pounds. The base of the pier was 32 feet long by something less than 30 feet wide; but as it rose it narrowed in length at the rate of 4 inches to the foot. At the base it required two sections of form to reach the length of the pier. Three sets of form were used for the work, one superimposed upon the other, and when the concrete had been poured into these three sets, and sufficiently hardened, the lower set would be removed by sections, raised above the other two, and placed in position and filled with concrete, when, in turn, the then lower set would be removed and replaced above in the same manner; this process being repeated as the pier rose in height. These sections were held in position by rods of corrugated iron about 7/8 of an inch square passing through the outside forms on either side with a nut and washer screwed firmly against the heavy 8 by 8 timbers, thus holding in position the forms on the outside of the pier, and drawing them against the ends of the forms on the slanting surface of the inner sides of the pier, making a complete box into which the concrete was poured. These bars extended 6 to 8 inches beyond the forms. The whole work of constructing the bridge was under the general supervision of an engineer, and different parts of the work were under the direct supervision of a foreman. The foreman in charge of the construction of this pier was one Beardsley, whose duty it was to direct the men in all of the work in connection therewith. Down to this point there was practically no divergence in the testimony. As to the manner of removing the sections for the purpose of replacing them on top of the remaining forms there was a sharp conflict. The plaintiff's testimony and that of the witnesses who testified in his behalf was clear and positive to the effect that, when the foreman was ready to have these forms removed, he would direct two of the workmen to descend upon the 8 by 8 inch pieces, take off the nuts and washers, and with a steel bar pry the 16-foot section of form from the concrete and out a short distance upon the rods passing through the forms and embedded in the concrete. After this, either by means of a block and tackle or by means of ropes or chains attached to a conveyer called a 'traveler,' which passed over the entire structure, the sections would be either lowered to the ground until such time as they were ready to be replaced above the remaining sections, or would at once be raised and placed in position as parts of the form for the next pouring of concrete. The plaintiff and the witnesses testifying in his behalf all stated that neither the block and tackle when used, nor ropes from the traveler when it was used, nor other supports of any kind, were ever attached to these forms until after they had been loosened from the concrete, and pushed out from 1 to 4 inches from the face of the concrete. Witnesses testifying on behalf of the city stated that usually the block and tackle or the ropes from the conveyer or ropes tied to the forms above were attached to these sections before they were loosened from the concrete. On the morning of the 31st day of May, 1910, the plaintiff and one McNeill were ordered by the foreman to descend upon the lower of the three sets of forms then in position some 68 feet above the ground, loosen these lower sections from the concrete, and shove them out upon the rods a few inches preparatory to replacing them above the two remaining sets. The nuts and washers had been previously taken off by another workman. At this point the pier had narrowed in length until it was only about 25 feet long, but under the direction of the foreman the same long sections of form were used as had been used at the commencement of the work, so that the outer sections projected beyond the pier a distance of 8 or 9 feet, leaving only the inner part of the section for a distance of 7 or 8 feet against the concrete. Four rods were used to each 16-foot section of form, and those which passed through the concrete were allowed to remain after the work was completed. At the time in question, by reason of the narrowing of the pier, the two inner rods of the outer section of form and the lower one of the two outer rods were wholly within the concrete, while the upper of the two outer rods was outside the concrete and passed merely through the forms on either side of the pier. Prior to that time the pier had been long enough to include all four of the connecting rods within the concrete. Where the sections of form joined each other, it was usual to nail boards called 'scabs' to prevent the concrete from passing out, and to make a more perfect joint. In compliance with the order of the foreman, the plaintiff and McNeill descended upon the lower and outer section of form and McNeill, sitting upon the outer end of the upper 8 by 8 timber, sawed the scab in two which joined this section with the one above it, while the plaintiff, sitting at the other end of the section on the lower 8 by 8 beam, was engaged in prying away the scab connecting that end with the next section of the same set. There was evidence tending to show that these men had pried this section on which they sat loose from the concrete at the upper part, and out upon the rod for a distance of about one inch. While the men were engaged in removing these scabs, the form suddenly settled, bent the ends of the rods on which it was hanging, slipped off, and fell to the ground, carrying the two men with it, injuring the plaintiff.

The negligence charged was that the defendant adopted an improper and unnecessarily dangerous method of performing the work; that the work was carried on without sufficient supervision; that there was failure to guard the men while at work by securing the forms so as to prevent them from falling; that the foreman in charge of the work was incompetent; and that the foreman, having caused one of the rods to be placed outside the concrete without the knowledge of the plaintiff, failed to notify him of that fact or to warn him of the added danger of the form falling by reason of its being sustained upon the ends of only three rods instead of four as usual. The defendant denied all the allegations of negligence, and interposed the affirmative defenses of assumption of risk and contributory negligence. At appropriate times, the defendant moved for a nonsuit and for a directed verdict, which motions were overruled. The jury returned a verdict in favor of the plaintiff for the sum of $9,750. The defendant's motion for judgment notwithstanding the verdict was overruled. Judgment was entered upon the verdict, from which the defendant appeals.

There are 20 assignments of error, but all, save the claim of excessive damages, present but 3 questions, the answers to which will be determinative of the case: (1) Was the appellant guilty of any negligence charged? (2) Did the respondent assume the risk? (3) Was the respondent guilty of contributory negligence?

1. That it is the duty of the master to exercise reasonable care to furnish the servant a reasonably safe place of work, and to keep that place reasonably safe, is law so familiar as to require no citation of sustaining authority. In the prosecution of an inherently dangerous enterprise reasonable care is care commensurate with the danger reasonably to be anticipated. In such a case reasonable care 'means great care.' 1 Labatt, Master & Servant, § 16, p. 30; Sprague v. New York & N.E. R. Co., 68 Conn. 345, 36 A. 791, 37 L. R. A. 638; 1 Thompson on Negligence, § 25.

'This is especially true as applied to the plan or method of operation deliberately adopted by the master or his representatives. When the plan is inherently defective and unnecessarily dangerous, its adoption is negligence entailing a liability upon the master for resulting injuries.' Jobe v. Spokane Gas & Fuel Co., 131 P. 235, just decided; Ball v. Megrath, 43 Wash. 107, 109, 86 P. 382; Blair v. Spokane, 66 Wash. 399, 405, 119 P. 839; Etheridge v. Gordon Constr. Co., 62 Wash. 256, 259, 260, 113 P. 639; Rogers v. Valk, 131 P. 231, just decided; 1 Labatt, Master & Servant, § 118.

What is reasonable care in a given situation, whether as applied to the question of the defendant's negligence or that of the...