Withiam v. Tenino Stone Quarry

• Decision Date: 20 December 1907
• Citation: 92 P. 900,48 Wash. 127
• Court: Washington Supreme Court
• Parties: WITHIAM v. TENINO STONE QUARRY.

92 P. 900

48 Wash. 127

WITHIAM v. TENINO STONE QUARRY.

Supreme Court of Washington

December 20, 1907

Appeal from Superior Court, Walla Walla County; Thos. H. Brents Judge.

Action by J. F. Withiam against the Tenino Stone Quarry. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Brooks & Bartlett, for appellant.

Charles A. Riddle, for respondent.

RUDKIN J.

On the 1st day of September, 1906, the plaintiff in this action was injured by falling from a scaffold while in the employ of the defendant on the high school building in the city of Walla Walla then in course of construction. At the time of receiving the injuries complained of the building had advanced to about the second story, and was ready for the cornice. Stones furnished by the defendant for window caps were being pur in place by means of a derrick. To aid in this work, a scaffold theretofore erected around the outside of the building was used by the workmen. This scaffold consisted of uprights 24 feet in length, extending from the ground 6 feet distant from the building. Ledgers were nailed to these uprights, upon which footlocks rested, extending from the building. The planking on which the workmen stood were laid on these footlocks, and the scaffold was held in place by braces nailed to the uprights above and to the window frames below. The plaintiff had worked on the building in one capacity or another from the time construction work commenced up to the time of the accident, and had assisted from time to time in the construction of the scaffold upon which he was standing at the time of his fall. Other braces had been removed from time to time prior to the removal of the brace which caused the scaffold to collapse. The plaintiff thus describes the manner in which he received his injuries: 'Q. Just state to the jury in your own way the manner in which you were injured, and under whose instructions you were acting at the time you were so injured. A. Under Mr. Murray's instructions. I was outside of the building on the scaffold, and he was inside. There was a wall between us, and we were about to hoist a window cap up to set it, and he handed me a hammer, and told me to knock the brace loose from that scaffold. I did so, and handed him back the hammer, and started to go back through the window on the inside, and the scaffold fell with me, letting me down to the ground.' The act of the foreman in directing the plaintiff to knock the brace loose is the sole ground of negligence charged in the complaint. The case was submitted to a jury and a verdict returned in favor of the plaintiff in the sum of $1,000. The court, on motion of the defendant directed a judgment in its favor, notwithstanding the verdict; and from that judgment the present appeal is prosecuted.

The respondent relies for an affirmance of the judgment on the rule announced by this court in Anderson v. Inland Tel etc., Co., 19 Wash. 575, 53 P. 657, 41 L. R. A. 410, and other like cases, which in substance is as follows: 'In a case where the servant is one of mature age and experience as in this case, the law never imposes the duty on the master of becoming eyes and ears for his servant, where there is nothing to prevent the servant from using his own eyes and ears to avoid danger. * * * The law requires that men shall use the senses with which nature has endowed them; and,...