Young v. Mason-Walsh-Atkinson-Kier Co.

• Decision Date: 06 June 1940
• Docket Number: No. 50.,50.
• Citation: 33 F. Supp. 358
• Court: U.S. District Court — District of Washington
• Parties: YOUNG v. MASON-WALSH-ATKINSON-KIER CO.

33 F. Supp. 358

YOUNG v. MASON-WALSH-ATKINSON-KIER CO.

No. 50.

District Court, E. D. Washington, N. D.

June 6, 1940.

Vanderveer & Bassett, of Seattle, Wash., and Moe & Hunter, of Grand Coulee, Wash., for plaintiff.

Witherspoon, Witherspoon & Kelley, of Spokane, Wash., for defendants.

NETERER, District Judge.

The plaintiff, a laborer on the Grand Coulee Dam project, after alleging jurisdictional facts, says in substance: That defendant is constructing for the United States Government pursuant to written contract a dam across the Columbia river; that he was employed as a laborer and worked under the general supervision of C. R. Durham, as the foreman; that prior to the injury complained of, he was working as a member of a "clean up" crew in salvaging unused materials and in gathering up and burning debris in and around "Block 40" of said dam; that while they worked under the general supervision of the foreman, they were nevertheless expected, though not required, to use their initiative in discovering work, that would keep them occupied during working hours, and the value of their work to the defendant as well as the retention of their employment, and their chances of promotion, depended to a large extent upon the degree of initiative which they employed; that the interior of said dam was equipped with inter-communicating galleries constructed on different levels and connected with one another by means of open vertical shafts about 3¼ ft. in diameter; that at the time of plaintiff's injury a quantity of unused materials and rubbish had collected in said galleries which, the defendant well knew, and should have known, it would soon become the duty of the "clean up" crew to remove; that said galleries were dark and not properly equipped for safety, were left open and wholly unguarded; no warning signals were given nor were notices posted and that while the plaintiff was walking along one of the galleries in said Block 40, not in the performance of his duty in his employment, but for the purpose, among others, of acquainting himself, in accordance with his foreman's suggestion, of the nature of the work which he would later be required to perform as a "clean up" man and thereby become a more useful employee, and secure more lucrative employment, he fell through an unguarded shaft to the floor of the gallery 50 feet below and was injured. He made claim to the State of Washington Department of Labor and Industries under Workmen's Compensation Law, and the claim was denied, for that the injury did not occur "in the course of his employment". Young v. Department of Labor and Industries, 200 Wash. 138, 93 P.2d 337, 339, 123 A.L.R. 1171.

The defendant moves to require the plaintiff to make more definite and certain as to paragraph III of his second amended complaint by stating in what gallery in Block 40 plaintiff was walking, and whether it is claimed that there was unused material and rubbish in said gallery; and stating the name of the foreman who suggested plaintiff acquaint himself with the nature of his work, and the date, and place of such suggestion.

The motion to make more definite and certain the second amended complaint, etc., will be treated as a motion for a bill of particulars, and as such is granted, and plaintiff is required to state to defendant what gallery plaintiff was walking in, what, if any, unused materials and rubbish were in said gallery; also give the name of the foreman who told plaintiff to acquaint himself with the nature of the work, and time and place of such suggestions.

The defendant also moves to dismiss, because no claim is stated upon...