29 Wash. 30 | Wash. | 1902
Thei opinion of the court was delivered by
Action claiming damages for personal injuries. The complaint states, substantially, that plaintiff is a minor nineteen years of age; and the action is brought by his father and guardian; that in April, 1899, plaintiff’s father, who was working for the defendant corporation in its manufacturing establishment in Tacoma, sought employment for plaintiff in defendant’s establishment; that plaintiff at that time was used to operating a sandpapering machine; that defendant, through its foreman, informed the father that the company then had (an operator running the' sandpapering machine; but there was liable to, be a change at any day, and in that, case a sandpapering operator would be required at, once; and that plaintiff could in the' meantime obtain employment in the factory, operating a ripsaw, and when the place was vacant, could be employed in running the sandpapering machine; that plaintiff’s
1. The errors assigned are upon rulings of the court excluding testimony tendered by the plaintiff, and the granting of the nonsuit. The errors assigned upon the exclusion of evidence are (1) that the court erred in excluding evidence tending to show that all the ripsaws in defendant’s factory were of the same model as offered at the trial; (2) in excluding evidence tending to show that all saws plaintiff had worked with, except defendant’s were guarded; (3) in excluding evidence tending to show the customs of mills on Puget Sound in and around Seattle, relative to guarding ripsaws. The controlling question is the granting of the order for a nonsuit. It may be observed that the evidence, when considered upon the objection to1 its sufficiency, must be given the most favorable intendment in favor of the contention of thei plaintiff. Applying this construction, an examination of the evidence shows that the allegations of the complaint- were fairly sustained, and, in view of the argument of respondent, there is, in substance; little distinction between ruling upon
“I find that they are nearly all guarded. Out of eighteen saws that I have examined there are only four that are not guarded. Q. You may state if use has anything to. do and the length of the lumber has anything to. do- with the necessity of the guard ? A. It has something to do with it. In ripping long stuff, all the way from ten to twenty feet long, a guard is not as requisite as it is for short material. However, a guard is no detriment at any time and I consider it absolutely necessary in ripping short stuff, from four feet down to any length that may be ripped.”
The witness, also- testified to the effect that he would not have consented to1 the employment of his son to continue work upon the saw, except for the promise of the defendant to place a guard thereon; that, at the time the repairs were made in the manufactory, he saw the foreman grinding the plates, for the guards, which the foreman informed him would be put upon the saws. He also, testified that the injury to. the son would have been prevented if the guard had been on the saw. There was. other testimony of an
It is urged that it would be very unsafe to permit a. jury to fix an arbitrary standard of duty in any given case; and therefore, if the ordinary machinery, in good order, is used, negligence is not imputed to the master. An examination of the authorities will show that definitions of “ordinary care” and “reasonable safety” are expressed in varying language, but generally it seems they mean such care as tlie ordinarily prudent man in the particular occupation, with ordinary experience and intelligence, would use to protect himself. The supreme court of the United States, in Grand Trunk Ry. Co. v. Ives, 144 U. S. 417 (12 Sup. Ct. 679), has fairly stated the function of the
“There is no. fixed standard in the law by which a court is enabled to. arbitrarily say in every case what conduct shall constitute ordinary care under any and all circumstances. The terms ‘ordinary care/ ‘reasonable prudence’ and such like terms, as applied to. the conduct and affairs of men, have a relative significance', and cannot be arbitrarily defined. What may be deemed care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men under a similar state of affairs.”
While the jury is not permitted to apply a rule of care formed solely by itself, all the facts and circumstances surrounding the transaction must be considered. The fact that the machine in operation is in ordinary use is a material one, but it is not an absolute, rule that this showing alone in all cases relieves the master from the charge of negligence. While the master is not required to' procure the newest and best machine, or to enter the field of experiment to provide additional safeguards to lessen the danger of machinery in ordinary use, he must give heed to the deductions of experience. It is a fact commonly known that machinery once considered safe has frequently been demonstrated by experience to be less safe than improved machinery in common use, and the master cannot shut his eyes to', such experience. If there can be placed upon a machine a simple, inexpensive guard, in common use, which will obviously reduce the danger of its operation, such fact surely may be taken into consideration, in con
' This view of the charge of primary negligence, under the evidence in the present case, refers the weight and the finding of the facts to the jury. So it is unnecessary to consider further thei distinction, urged hy counsel for respondent, between the commonly accepted rule that, when the master promises to repair a defect in a machine apip roved by common use, he is,' for a reasonable time, charged with the assumption of the risk of the servant,— that then the assumption of the risk hy the servant is shifted to the master,- — and thei case, of such a machine in good order, which the master promises to- improve and make more safe.
2. The judge who -tried the ease seems to have concluded that the promise to repair made hy the defendant was not, performed within a reasonable time, and that, as a matter of law, after such time had elapsed, the asr sumption of the risk was shifted again to the plaintiff. The general rule applicable here is stated, in terms worthy of approval, by Shearman & Kedfieid on The Law of Negligence, § 215, thus:
“There is no longer any doubt that where a master has expressly promised to repair a defect, the servant does not assume the risk of an injury caused thereby within such a period of time after the promise as would he reasonably allowed for its performance, or indeed, within any period which would-not- preclude all reasonable expectation that the -promise might he kept. And the same principle applies to a case where the master promises to a servant to discharge an incompetent fellow-servant, but fails to- do so, and the former servant is thereby injured, or where a seawant, apprehending a particular danger, makes it known to the master, who assures him that he will*39 provide against it. ISTor, indeed, is any express promise or assurance from the master necessary. It is sufficient, if the servant may reasonably infer that the matter will be attended to.”
This rule is quoted and adopted by the supreme court of the United States in Hough v. Texas & P. Ry. Co., 100 U. S. 213. Bailey on Master’s Liability, ch. 2, p’. 211, observes:
“The language of some of the cases, would seem to warrant the conclusion that a promise to repair, on the part of the master, was in effect a guarantee on his part to indemnify the servant against injury while he continued in the employment exposed to- the known peril. Yet such is hardly the effect of the rule. I think — and such is the result of the great majority of the cases — that ordinarily it is a question for the jury, though sometimes for the court.”
Cooley on Torts (2d ed.), p. 661, states the principle thus:
“It is also negligence for which the master may be held responsible, if knowing of any peril which is known to the servant also-, he fails to remove it in accordance with assurances made by him to the servant that he will do so. This case may also be planted on contract, but it is by no means. essential to do so'. If the servant, having a right toi abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to> remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume its risks. So far as the particular peril is concerned the implication of law is rebutted by the giving and accepting of the assurance; for nothing is plainer or more reasonable than that parties may and should, where practicable, come to an understanding between themselves regarding matters of this nature”
It may be observed of the other assignments of error that, upon the consideration of the case here made, they become immaterial. Reversed, and remanded for a nerw trial.
Hadley, Fullerton, Anders, Dunbar, Mount and White, JJ., concur.