Coffer v. Erickson

Morris, J.

(dissenting) — I dissent. The evidence to my mind clearly establishes the contributory negligence of the respondent. He had lived within a block of the place where he claims to have received his injury, for a year, crossing the bridge daily. He knew the engines discharged quantities of smoke and cinders, while they were passing under the bridge. He noticed it frequently. He says the bridge “was literally covered there at times, I noticed,” and that he never passed there without observing cinders being thrown out with great force. As he saw an engine going south, he hesitated because, he says, he did not want to get in the way of the smoke. Evidently he appreciated the probability of cinders being thrown upon him if he crossed over the engine. Then he proceeded on his way and saw' the north-bound engine approaching the bridge “puffing up sparks.” He does not hesitate this time, however, but walks upon the bridge directly over this engine and right into the cloud of smoke, cinders and sparks he saw being ejected from its smokestack. He deliberately, and without any necessity for so doing, placed himself in a position where the cinders and sparks from the engine must strike him. To do so was to voluntarily risk any danger that might arise from such a position; and was contributory negligence.

If the majority hold it was negligence for the engine, to pass under the bridge puffing out cinders, how can we escape the conclusion that it was likewise negligent for the respondent to deliberately walk into the cinders? He cannot be heard to say that, while he knew sparks and cinders would be thrown up against and about him, he did not anticipate any serious danger. As we said in Nordstrom v. Spokane & Inland Empire R. Co., 55 Wash. 521, 104 Pac. 809, 25 L. R. A (N. S.) 364, that “is a plea of knowledge of the danger, but not of its consequences, a doctrine which the law does not recognize . . . knowledge of danger is in law knowledge of the injurious results naturally and proximately flowing from that danger.” I cannot escape the conclusion that this principle of law is applicable to the facts here disclosed, and that respondent’s knowledge of the ejecting sparks and cinders being thrown with force upon and over the bridge, his voluntary walking into them with full knowledge of them, seeing them being so ejected, was a knowledge of the danger, and in law a “knowledge of the injurious results naturally and proximately flowing from that danger.”

The appellant’s motion for instructed verdict should have been granted.

Chadwick, J., concurs with Morris, J.