
    [No. 5106.
    Decided April 3, 1905.]
    George Griffiths, Appellant, v. J. E. Craney, Respondent.
      
    
    Master and Servant—Negligence—Injury to Workman Recovering Grading Machine—Insecurely Attaching Chain—Assumption oe Risk—Nonsuit. In an action against a contractor for personal injuries sustained by a workman in assisting to recover a grading scarper that had fallen off the grade, the plaintiff assumed the risk and a nonsuit is properly granted, where it appears that the scraper fell upon the plaintiff because of insecurely attaching a chain near a crack in the tongue, which was broken by the fall, that the crack was observed by the other workmen and a caution given as to attaching the chain there, and the work was done in the presence of the plaintiff, who had opportunity to see that the chain was securely fastened, or to have gotten out of the way, in case it was not; and the contractor cannot be held liable on the theory that it was the duty of the foreman in charge to see that the chain was securely fastened, where the work was left to the men and needed no special supervision.
    Appeal from a judgment of the superior court for Spokane county, Belt, J., entered December 4, 1903, upon granting a nonsuit at the close of plaintiffs case, in an action for personal injuries sustained by defendant’s workman in assisting to recover a grading scraper that had fallen off the grade.
    Affirmed.
    
      Roche & Onstine, for appellant.
    
      M. J. Gordon and Charles A. Murray, for respondent.
    
      
      Reported in 80 Pac. 274.
    
   Fullerton, J.

The appellant was injured while in the employ of the respondent, and brought this action to recover for such injuries, alleging that the same were caused by the negligence of the respondent. At the time of the injury the respondent was engaged as contractor in constructing a county road near Ohattaroy, Spokane county, in this state. That part of the road being then constructed extended along a steep side hill, and a wheel scraper, pulled by horses, was among the tools used in doing the necessary grading. Just prior to quitting time on the evening before the accident, the scraper was brought too near the edge of the grade, and on being dumped slipped off the grade and rolled to the foot of the hill. In the fall the end of the scraper’s tongue was broken off, and the part adhering to the scraper cracked at a point about two feet from the break. On the next morning the foreman in charge of the grading ordered the workmen to bring the scraper back onto the grade. This they undertook to do by using the team of horses to make the pull. A chain was extended from the team, which stood on the grade, down to and hitched onto the scraper. The team, in order to make a direct pull, had to pull across the course of the grade, and the distance they could move in that direction was not far enough to’ bring the scraper onto the grade. A pull was therefore made bringing the scraper about half way up the grade, where it was held by the workmen, the appellant being one of them, until the team could be brought around and a shorter hitch made with the chain. After this change was made, and the team had moved about ten feet on the second pull, the hitch gave way, and the scraper rolled back against the appellant, causing the injury for which he sues. It was shown that the cause of the hitch giving way was the crack in the tongue. This crack was discovered by one of the workmen when the chain was first hitched onto it, at the foot of the hill, and the attention of those engaged in the work was called to it. At the time the second hitch was made, a workman again called attention to the break, cautioning the man making the hitch to’ get the chain behind the break. The foreman stood on top of the grade while the work was going on, and signalled when to stop and shorten the chain, but gave no directions as to- the manner in -which it should be hitched onto the scraper, leaving that duty to the judgment of the workmen who were working around the scraper.

The action is prosecuted on the theory that it was negligence on the part of the foreman not to see that the chain was hitched securely to the scraper, and that the foreman’s negligence is the negligence of his principal, the respondent in this action. The trial court held, however, that the appellant assumed the risk of injury from the manner in which the work was being done, and we think the holding must be sustained. There was nothing about the work that needed special Supervision. The appellant knew as well what must be done to get the scraper to the top of the grade as did the- foreman, and everything that was done in accomplishing that end was done directly before his eyes. If the chain was insecurely fastened, he, as a reasonably prudent naan, ought to have known it, and either insisted upon its being corrected, or gotten out. of the- track of the scraper in case the hitch should give way and let it roll back down the hill. The evidence shows that he had the opportunity to do both or either, and his injury must be held to be the result of his own neglect.

It is true, the appellant testifies that he did not see the crack in the tongue-, nor hear his fellow workman give warning of that fact; but, as we said in Steeples v. Panel etc. Box Co., 33 Wash. 359, 74 Pac. 475, “A plaintiff cannot recover simply by making a statement of that kind, if, under the circumstances, it was his duty, as a reasonably prudent man, to- have made such an examination as would have resulted in the desired information.” Here we think it was plainly his duty to have made the examination, and that he cannot be heard to plead his ignorance of facts he ought to- have known as the basis of his right to- recover.

The judgment appealed from is affirmed.

Mount, C. J., Hadley, and Dunbar, JX, concur.

Rudkin, Root, and Crow, XT., took no part.  