42 Wash. 50 | Wash. | 1906
Lead Opinion
— This cause was once before appealed to this court’, and was reported in 36 Wash. 345, 18 Pao. 932. The former appeal was determined upon demurrer to the com
It is assigned that the court erred in denying appellant’s motion for nonsuit. It is contended that the proof showed that appellant was not negligent in the particular wherein it was held that the complaint charged negligence; but that it appeared that means for signaling from the engine to the man at the logs were provided. The testimony discloses the environment of respondent much as described in the complaint. His situation at the logs was about sixty rods from what was called the “road” engine. This engine was stationed at the side of the railroad track, and was operated to draw the logs from the place where respondent connected them with a cable attachment. They were drawn down to the railroad in this manner for the purpose of being loaded upon the cars. Respondent’s location was up a hill from that
Close to the place where respondent was required to attach the logs, was stationed another engine, called the “yard” engine. This was nsed to draw the logs by means of another cable extending hack into the woods to points where the logs were cut. When thus drawn out to a point near this engine, it was respondent’s duty to attach them to the cable connected with the road engine, for the purpose aforesaid. A wire rope extended from near respondent’s location to the road engine, which was attached to the whistle of the latter engine. It was provided in order that respondent might, by pulling it, sound the whistle of the road engine, and thus signal the engineer that the logs were attached and ready to he drawn. The engineer was not expected to* start the engine until he received such a signal, which by rule was to be one sound of the whistle. There was no appliance extending from the road engine to respondent’s location whereby the engineer could sound a signal near respondent that the engine was about to he started. The signaling means which appellant contends it did provide were that the engineer should give one sound of the whistle at the engine as a notification to respondent that the engine was about to start for the purpose of pulling the logs
It will he observed that the place where appellant contends it provided a signal to be sounded for respondent’s protection, was sixty rods distant from him, with a hill and trees intervening between him and the place. Moreover, in close priximity to the respondent was the yard engine, which the evidence shows, was in operation at the time of the accident. It was also shown that the running of this engine and the operation of its cable attachment made much noise.
For reasons stated in the former opinion, we think that, under the testimony introduced by respondent, the court should not have held as a matter of law, upon the motion for nonsuit, that the cause came within the fellow servant rule which exempts the master from liability. In the discharge of their particular duties, the two employees were necessarily so situated remote from each other that adequate means of communication from the engineer to respondent were necessary in order that respondent might assuredly receive warning of danger from the movement of logs about to be made. With such adequate warning means provided, respondent might as a result thereof have been enabled to so
In any event, whatever may have been tbe evidence at that time, appellant did not stand upon its motion for non-suit, but proceeded to introduce evidence- in its own behalf. Having thus waived its right to stand upon the motion for nonsuit, it then became necessary to- consider tbe case upon tbe wbo-le evidence introduced by both parties. Port Townsend v. Lewis, 34 Wash. 413, 75 Pac. 982; Elmendorf v. Golden, 37 Wash. 664, 80 Pac. 264. Appellant introduced evidence that the engineer did sound the whistle signal before starting. Hnder appellant’s theory and evidence, there was, therefore, no neglect, of the fellow servant by way of failing to use the signaling means provided. If, therefore, there was neglect of the fellow servant, it consisted in starting the engine without first receiving a signal from respondent. Respondent says that he heard no starting signal. If, therefore, the starting signal device was insufficient to meet the exigencies of respondent’s situátion, there was negligence of the master concurring with that of the fellow servant. In such a case, the master is not excused. Costa, v. Pacific Coast Company, 26 Wash. 138, 66 Pac. 398; Brabon v.
Appellant assigns as error the refusal of the court to give certain instructions. We think, however, that the instructions given fairly and fully submitted the case to' the jury within our views as above set forth, and also, in the former opinion. We believe appellant’s requests for proper instructions were sufficiently covered by those given, and that its rights were not prejudiced by the refusal to instruct in the exact' form requested.
No questions being raised as to the extent of respondent’s injury, the amount of damages awarded, or as to the introduction of evidence at the trial, the judgment is therefore affirmed.
Mount, O. J., and Dunbar, J., concur.
Concurrence Opinion
(concurring) — By reason of the rulings heretofore announced in Conine v. Olympia Logging Co., 36 Wash. 345, 78 Pac. 932, which have become the law of this case, we concur in the result.
Pubberton, J., dissents.