32 Wash. 319 | Wash. | 1903
The opinion of the court was delivered by
Appellant was employed by respondent as the engineer of what is known as a “donkey steam engine.” The engine was operated in respondent’s logging camp for the purpose of moving and loading logs. In
Several alleged errors are discussed by appellant’s counsel, relating to the court’s rulings upon motions, some of which were interposed by appellant and some by respondent. For the present, however, we will discuss the motion of respondent to discharge the jury and render judgment of dismissal. It is not contended by respondent that the swamp hook which was used was of sufficient strength for the purpose to which it was applied, and we understand it to be actually conceded that it was not the proper appliance that should have been selected upon that
We think the relations of the hook tender to the crew of men, as stated above, were such as made him what is ordinarily called a vice principal, and that he then stood in the place of the master.r He directed the men, and determined both what appliances should be used and the method of adjusting them. It may be true, as argued by respondent, that he could not, in reason, have personally inspected and overseen all small details, and that such might have been properly left to the judgment of the fellow servants. On the other hand, it may also be reasoned that the detail here involved was not small or unimportant. It called for the selection and application of devices that would ordinarily be deemed sufficient to pull a large tank then containing from 600 to 100 gallons of water in addition to its own weight, and which, from its position, must also plow its way through a mound of earth and roots in front of it. We think the circumstances were such that it ought not to be said that the selection of appli
It has already heen stated that it is disputed in this case that respondent, as master, had actually furnished the necessary available appliance in the way of a large swamphook.- But, assuming that it had done so, as respondent insists, then the recent case of Wall v. Marshutz & Cantrell, 138 Cal. 522 (71 Pac. 692), decided by the supreme court of California February 19, 1903, seems to be particularly in point here. There one was injured, while employed in a foundry, by the falling of an iron plate, which fell by reason of a defective clamp, selected by the person who had charge of the selection of the tools used in the work. It was contended that, since the ordinary and usual appliances for lifting weights had been furnished by the master, the selection of the particular clamp 'used was the act of a fellow servant. The court, however, held that the selection made was the act of a vice principal, since the duty rested upon him to select the tools for doing the work from among those furnished by the master. Such was the duty of the hook tender in the case at bar. The selection was made under his direction, and, as we have seen, was in effect his own act. We approve the rule of the California case, and it follows that, whether the case at bar be viewed as one where the master had
Respondent insists that the evidence shows contributory negligence on the part of appellant as the proximate cause of his injury, and that it should be held as a matter of law that he is not entitled to recover. It is claimed that the cable had six or seven feet of slack at the time he started the engine, which appellant knew and saw; that 'he started with the hard pull, which caused a sudden strain upon the cable when the slack was drawn in. It is insisted that the usual manner of starting was first slowly to draw in the slack, and then begin the hard pull. It is also insisted that the appellant contributed to his injury because he knew of the use of the small swamp hook, and did not object to it. These questions of contributory negligence we think under the evidence are such as should be submitted to the jury, and that it should not now be determined as a matter of law that appellant is not entitled to recover because of his own negligence. There is evidence to the effect that the hook which was used was insufficient to have withstood any kind of hard pull upon as heavy a weight as the tank, without regard to the manner of starting, and that no signal for any kind of start should have been given. Appellant also denies that he knew that the small swamp hook was being used.
Since, for the reasons above given, the cáse must be reversed, we do not deem it necessary to discuss other alleged errors. Doubtless before another trial appellant’s application to amend his complaint in certain particulars asked will be granted. The refusal at the time of the trial was based upon the ground that it came too late, and was a surprise to respondent.
The judgment is reversed, and the cause remanded with instructions to the lower court to retry it.
Fullerton, O. J., and Mount, Anders and Dunbar, JJ., concur.