Northern Pac. Ry. Co. v. Schoeffler

GIRBERT, Circuit Judge (after stating the facts as above). The case is presented in this court on the assignment of error that the trial court denied the motion of the plaintiff in error for an instructed verdict. It is said that the motion should have been sustained on three grounds: That the plaintiff in error was not negligent; that the defendant in error assumed the risk of his employment; and that he was guilty of contributory negligence. [1-3] It was the duty of the plaintiff in error to furnish the defendant in error a safe place in which to work, and to keep it reasonably safe during the progress of the work. That duty was not confined to the spot in which the defendant in error regularly or principally worked. It extended to places where he had to go in the course of his work, and that duty could not be delegated to another so as to relieve the plaintiff in error of liability for failure to perform [630] it. The defendant in error had the right to look to his employer for the discharge of that duty, and if the latter, instead of discharging it himself, saw fit to delegate it to another servant, he did not thereby alter the measure of his own obligation. Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612; Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772; New England Ry. Co. v. Conroy, 175 U. S. 326, 20 Sup. Ct. 85, 44 L. Ed. 181. [4] If, as is indicated by the testimony of witnesses for the plaintiff in error, the employés ón the repair tracks were obliged to cross those tracks daily in the course of their work without being able to see the switch engine, or to see whether the switch was locked, and they were given no warning of the approach of the engine and the consequent displacement -of the “spotted” cars, the place was obviously and necessarily unsafe, and those facts furnish evidence of the negligence of the plaintiff in error. If, on the other hand, it was the custom in the yard to give notice that the cars on any of the tracks were to be pulled or moved, as is indicated by the testimony of the defendant in error, there was evidence of negligence in the fact that on the occasion when the injury occurred, no notice or warning was given. [ 5] Nor did the defendant in error assume the risks resulting from a breach of the duty of the plaintiff in error to furnish him a safe place in which to work, whether that duty was assumed by the master, or was by him delegated to another. 1 Labatt on Master and Servant, § 270; Harvey v. Texas & Pac. Ry. Co., 166 Fed. 385, 92 C. C. A. 237; Hough v. Railway Co., 100 U. S. 213, 217, 25 L. Ed. 612. In the case last cited it was said: ‘‘But it is equally implied in the same contract that the master shall supply the physical means and agencies for the conduct of his business. It is also implied, and public policy requires, that in selecting such means he shall not be wanting in proper care. His negligence in that regard is not a hazard usually or necessarily attendant upon the business. Nor is it one which the servant, in legal «mtemijlation, is presumed to risk, for the obvious reason that the servant who is to use the instrumentalities provided by the master has ordinarily no connection with their purchase in the first instance, or -with their preservation or maintenance in suitable condition after they have been supplied by the master.” Hough v. Railway Co., 100 U. S. 213, 217 (25 L. Ed. 612). [6] From the record it does not appear that the case is one which should have been taken from the jury on the ground of the pfoven contributory negligence of the defendant in error. It is argued that the sound of the bumping of the cars was sufficient to give the defendant in error warning of the danger, and we are referred to the testimony of the witness Haas who said that he heard the bumping, and to that of the witness Brockback, who said that he heard a crash. But it is not shown that those sounds were audible sufficiently' long before the injury to give the defendant in error notice of the approach of the cars. At any rate, he testified that he did not hear them, and that he knew nothing of any movement of cars on the track until just as he was struck. The question óf his contributory negligence under the circumstances was plainly one for the jury. Well v. Moran [631] Bros. Co., 55 Wash. 102, 104 Pac. 172; Smith v. Hewitt-Lea Lumber Co., 55 Wash. 357, 104 Pac. 651; Sturgeon v. Tacoma Eastern R. Co., 48 Wash. 366, 93 Pac. 526, 125 Am. St. Rep. 934. We find no error. The judgment is affirmed.