Kelly v. Cowan , 49 Wash. 606 ( 1908 )

Root, J.

This is an appeal from a judgment allowing damages for a personal injury received by respondent while working for appellants, who were contractors engaged in the erection of a high building in Tacoma. In the building were two platforms, side by side, which were raised and lowered by means of cables, and used for carrying brick and other builder’s material from the ground up to those portions of the upper floors where said material was being used. They were of the character in common and general use for such purposes. These platforms or elevators were so constructed that when one went up the other came down. At the time of the accident, brick was being carried up by means of these elevators. A wheelbarrow loaded with brick would be placed upon one of the platforms, which would then be elevated to. the upper floor where the wheelbarrow and brick would be removed from the platform or elevator to the floor of the building, and moved to where needed. While a man at the top was removing the brick, the respondent would place another wheelbarrow loaded with brick upon the other platform at the bottom of the elevator shaft. At this particular time, it is claimed that the platform at the top was not quite flush with the upper floor of the building, aiid that, as the wheelbarrow was being removed from the platform to the floor of the building, the brick were jostled in such a manner as to cause one of them to slide or fall from the barrow down the elevator shaft, where it struck respondent. The latter had been working on this building for about two weeks, and had, at various times during the past nine months, been engaged in working about buildings in course of construction. He testified that he had seen a man with a wheelbarrow and load of brick fall down a shaft, and that he had been told that another man had narrowly escaped injury from the falling of a brick some time before, in the same shaft where he was injured. Respondent contends that the appellants were negligent in not giving him a safe place to work, and keeping the place reasonably safe. He also contended in the lower court that the failure of the man above to have the elevator come flush with the upper floor before removing the wheelbarrow was a breach of a nondelcgible duty of the master. The trial court, however, held that the man on the upper floor was a fellow servant of respondent, and that the latter could not recover by reason of any negligence of such fellow servant. The correctness of this holding is not presented for our consideration.

The appellants urge that, inasmuch as the danger which occasioned respondent’s injury was one that was open, apparent, and known to him, he cannot recover. Respondent’s attorney urges strongly upon us a consideration of the “humanitarian side” of the question. We do believe in giving consideration to the “humanitarian side” in deciding personal injury, and all other, cases; but we cannot put such considerations above the law, nor permit our feelings of sympathy to override the law by making radical changes therein which the people have not authorized us to make. Argument for the elimination or radical modification of such principles as are involved herein should be addressed to the legislature. That body is, by the people, through their constitution, given the power of legislation. The courts are not vested with such authority. We are in duty bound to apply the law as we find it.

The principles of law controlling a case like the one at bar are well settled. The servant assumes the risk of dangers that are to him open, apparent, and known. In this case the respondent could see the condition of his working place. He knew that bricks handled by the method employed were liable to occasionally fall down the shaft, as he testified that sometimes he piled the bricks regularly and sometimes threw them into the wheelbarrow in a haphazard manner. He had been told that another workman had recently narrowly escaped injury from a brick thus falling down one of these identical shafts. He knew that there was no covering over either of the platforms. He had seen a man and load of bricks fall. He knew that one platform was at the top, while the other was at the bottom, and that while he was placing a load of bricks upon the lower platform his fellow servant was removing another load from the upper platform. However negligent the master may have been in haying the work done in this manner, it is evident that all of the dangers of the situation could easily be seen, understood, and appreciated by the respondent, and that he knew of them. This being true, the doctrine of assumed risk applies, and a recovery is defeated. It would doubtless be a good statute that would require protection for working men employed as was this respondent, and such a statute could defeat the defense of assumed risk; but until there is legislation of this kind, we have no discretion but to follow the law as we now find it.

The judgment of the honorable superior court is reversed, and the cause remanded with instructions to dismiss the action.

Crow, Mount, Rudkin, and Fullerton, JJ., concur.