Emery v. City of Tacoma

Ellis, J. This is an appeal by the defendant city of Tacoma from a judgment against it in favor of the plaintiff, for damages by reason of personal injuries suffered by him through alleged negligence of the city in employing an incompetent fellow servant. The sole question presented for our consideration is as to the sufficiency of the evidence to sustain the verdict and judgment. The facts as established by the evidence were as follows: On June 5, 1911, the date of the accident, and for several months prior thereto, the city of Tacoma was and had been engaged in making a fill in Tacoma avenue at what is known as the Tacoma avenue bridge. The dirt was secured from an adjacent bank by sluicing, and was carried to the fill in sluice boxes. The sluicing was done by forcing water through a pipe connected with a hydraulic giant. Prior to the day of the accident, the giant had been equipped with a short straight nozzle, three or four inches long. About thirty days prior to the accident, one Andrew Shire applied for employment to the commissioner of public works, who had charge of the employment of men for this work. Claiming to be an experienced nozzleman, he was, without further investigation, sent to the head foreman on the work and immediately employed as nozzleman, so continuing until the accident. During all of that time, however, he used the straight, short nozzle which required no particular skill or experience to operate safely. The men engaged on the work were divided into two shifts, one working in the forenoon, the other from noon till night. Each shift had a foreman, that of the forenoon shift being head foreman. There was also an engineer in charge of the work, and both foremen were under his direction and control. Shire was nozzleman for the afternoon shift. At some time in the forenoon of the day in question, the head foreman removed the short straight nozzle from the giant and put on a deflecting nozzle. The best description of this nozzle found in evidence is that of the nozzleman of the forenoon shift. He said: — 134 — “The giant in the first place is straight, runs on a ball-bearing and swings around by hand. This deflector has a ball joint fastened to the end of the giant, and when the water strikes the deflector it plays back and forth, and there is a lever on the deflector and when you move the deflector, that means to glance, — when it strikes the ball it turns the giant, and when the water strikes direct, straight into the deflector, it goes straight through and there is no pressure, and when you pull it off the center, it strikes the side of the ball-bearing and that turns it, and it sets on a set screw, so that it is perfectly loose, and the water turns it back and forth. If you pull the lever to you it throws the point of the deflector away from you, and the water strikes her and that turns it towards you. You don’t have to pull it at all; it moves itself. At that time there was 145 pounds pressure, and if you pull it off the center no man living can hold it.” The evidence amply shows that this would be a very dangerous instrumentality to intrust to the management of an inexperienced man. The foreman testified that, Shire objected to the change in nozzles, called the deflector a “newfangled arrangement,” and said he did not want to work with it. That afternoon Shire was a few minutes late for work, and when he arrived the man who was operating the nozzle attempted to explain to him how to use it. Shire impatiently informed him that he knew all about it, told him to get out of the way, and took charge of it. At the time there were six or eight men at work in the pit shoveling the displaced dirt into the sluice boxes. Within a few minutes afterwards, a man named Alexon was knocked down by the stream, but under what circumstances does not fully appear. Within a very few minutes afterwards, Shire completely lost control of the nozzle, and it swung round so that the stream struck the respondent and two other men who were working by his side shoveling dirt into the flume, knocking them down and inflicting upon the respondent the injuries complained of. The appellant contends that there was not sufficient evidence that Shire was incompetent, but on the contrary, the — 135 — fact that he had acted in the capacity of nozzleman for at least thirty days without accident or complaint proved his competence. There could be no question of the correctness of this position had there been no change in the nozzle. The evidence, however, makes it perfectly plain that a much greater degree of care, prudence, and experience is required for the operation of a deflecting nozzle with safety than that required for a straight one. The evidence was all one way, that the operation of a deflecting nozzle by a man of no previous experience with that kind of nozzle would be extremely dangerous to his fellow workmen. This w,as graphically expressed by the nozzleman of the forenoon shift, himself an experienced man. When asked what danger to others would result from the operation of a deflector by an inexperienced man, he said: “There is as much danger as to get up on a locomotive and pull the throttle open and letting her go; a man wouldn’t know what she would do; he did not know what to do to stop it, and if you were around there the water would hit you, because she would be in motion for a month, as long as the lever was off the center there was no way to stop it except to push it back on the center.” With such an instrumentality, it is obvious that any evidence of inexperience would be evidence of incompetency of the operator. The evidence was uncontradicted that Shire objected to the deflector as a “newfangled arrangement,” and “objected to putting on of any additional inventions,” said that he did not want to work with it, and seemed to consider it too complicated. From this evidence, the jury might easily conclude that the device was entirely new to him, and that he was wholly lacking in an essential element of competency, namely, experience with such an instrumentality. As opposed to this there was absolutely no evidence that he had ever used a deflector, further than his impatient remark to the man in charge when he came late to his work that afternoon. Moreover, there was evidence that, even with an ex — 136 — perienced man, it required a cool head to operate a deflector with safety under high pressure, and that Shire was of an excitable disposition. However competent Shire may have been to operate a simple, straight nozzle, the jury was warranted by the evidence in finding him incompetent to operate the more complicated and dangerous deflecting nozzle. But it is urged that, even conceding Shire’s incompetence, there was no evidence of negligence on the appellant’s part in employing him. This presents the question of reasonable care which is always a relative question determinable upon the exigencies of the particular service and the danger to be avoided. Wabash R. Co. v. McDaniels, 107 U. S. 454-460; 26 Cyc. 1295, 1296; 1 Labatt, Master and Servant, § 194. The head foreman, the engineer in charge, the foreman of the afternoon shift, and the nozzleman of the forenoon shift, all concurred in the statement that the use of the deflector would be dangerous if intrusted to an inexperienced man. The exigencies of the service certainly required a greater degree of care in the selection of an operator for the deflector than for the ordinary, straight nozzle. We are not impressed by the contention that the appellant had done its whole duty in this regard when its commissioner of public works asked Shire if he had had experience as a nozzleman and was content with an affirmative answer. The nozzle then in use was a' straight nozzle, and there is no evidence that the use of a deflector was then contemplated; certainly it was not mentioned. The record is devoid of a single word of evidence that, either then or thereafter, any inquiry was made, either from Shire himself or from any other source, as to whether he had ever used a deflector. However long he may have handled the straight nozzle with safety, that was no evidence that he could operate the deflector. The very change of instrumentality should have suggested additional inquiry and care. While the evidence shows that an intelligent and careful man could learn to operate a deflector in half an hour or less, this, so far from excusing inquiry, em — 137 — phasizes the ease with which Shire’s competency or lack of competency could have been demonstrated. A short try-out without men in the pit would have settled the matter. The appellant contends that a master has the right to assume that a servant will not undertake work which he has not sufficient skill to perform, in the absence of conduct indicating general carelessness. One case (Hilton v. Fitchburg R. Co., 73 N. H. 116, 59 Atl. 625, 68 L. R. A. 428), so holding, is cited. While in that case a correct result was probably reached upon the facts, we cannot, in view of our own decisions and what we conceive to be the decided weight of authority, adopt that statement as a correct pronouncement of a general rule of law. It would relieve the master of any positive duty to make reasonable inquiry as to the competency of the servant, however dangerous to co-laborers the employment might be and however easy the ascertainment of the truth. It would substitute unreasonable complaisance for reasonable care. It would ignore the exigencies of the service. The following rule announced by the late Justice Harland in Wabash R. Co. v. McDaniels, supra, seems to us more consonant with the dictates of reason and humanity. “But according to the best-considered adjudications, and upon the clearest grounds of necessity and good faith, ordinary care, in the selection and retention of servants and agents, implies that degree of diligence and precaution which the exigencies of the particular service reasonably require. It is such care as, in view of the consequences that may result from negligence on the part of employes, is fairly commensurate with the perils or dangers likely to be encountered.” The nozzleman had been employed with the deflector nozzle but fifteen or twenty minutes prior to the accident. He had expressed a reluctance to use it, his language to the foreman indicating that it was new to him. Ordinary prudence would have suggested inquiry as to his knowledge and experience with so dangerous an agency. Reasonable care would have demonstrated his unfitness. — 138 — “When the master places a servant in charge of dangerous machinery where special knowledge, skill, or experience is required for its safe and successful operation, he must make reasonable effort to ascertain the qualifications of the servant thus employed, and if he fails to do so he cannot escape liability by showing that there was nothing in the conduct of the servant during the course of two hours’ employment to demonstrate or give notice of his incompetency.” Pearson v. Alaska Pacific Steamship Co., 51 Wash. 560, 99 Pac. 753, 130 Am. St. 1117. “Actual knowledge on the part of the master of the incompetency of a servant through whose acts another servant sustained injury is not indispensable to the injured servant’s right of recovery. The master cannot screen himself from liability upon the ground that he did not know of the incompetency of the servant whose negligence caused the injury, if he might have known it by the exercise of reasonable care and caution.” 26 Cyc. 1299. See, also, Seewald v. Harding Lum. Co., 49 Wash. 655, 96 Pac. 221; Pope Glucose Co. v. Byrne, 60 Ill. App. 17; Scott v. Iowa Tel. Co., 126 Iowa 524, 102 N. W. 432; Gilman v. Eastern R. Co., 13 Allen 433, 90 Am. Dec. 210. The question presented was, under the evidence, one for the jury. 1 Labatt, Master and Servant, § 186. The judgment is affirmed. Mount, C. J., Fullerton, Morris, and Main, JJ., concur.