64 Wash. 577 | Wash. | 1911
This action was brought by the respondent, a minor, through his father as his guardian ad litem, to recover for personal injuries suffered by him while he was in the employ of the appellant. The respondent was employed as a blacksmith’s helper, and received his orders from the blacksmith under whom he was working, both as
The respondent’s first duty as helper was to place the stop block between the dies of the steam hammer. His second duty
The respondent was injured while putting the stop block in place. After concluding his work at the anvil, he started back to place the stop block, and was in the performance of the act when the blacksmith arrived with the heated axle. As
The respondent based his cause of action upon the claim that the blacksmith stood to him in the relation of a vice principal, and that the blacksmith was: guilty of negligence, which negligence caused his injury. The appellant asserts the contrary of these propositions, and contends, further, that the respondent’s: injuries were caused by his contributory negligence, and that he assumed the risk of injury when he engaged to perform the work. A contention is made also that the question whether or not the blacksmith and the respondent were fellow servants' was a’question for the jury.
In support of its contention that the blacksmith and the respondent were fellow servants, the appellant has cited a
Whether or not the injury to the appellant was the result of negligence on the part of Allison was a question for the determination of the jury. After finishing one axle at the hammer, the respondent was entitled to sufficient time to go back to the steam hammer, place the stop block thereon, and get clear of the machine before this hammer was put in motion. It was a question for the jury in this case whether he was given that time, and if not given 'sufficient time, whether the failure so to do was negligence. That the blacksmith got to the hammer with the heated axle and placed it between the dies before the stop block had been put in position, he himself testified; in fact, he testified that, after placing the iron on the die, he discovered that the block was not
So, also, the question whether the respondent negligently contributed to his injury was for the jury. The facts as detailed do not conclusively point to such an inference.
Neither is the claim that the respondent assumed the risk of injury well founded. Undoubtedly he assumed the ordinary and obvious risks incident to the employment, as well as the special risks arising out of dangerous conditions known and appreciated by him, but he did not assume the dangers caused by the negligence of a vice principal. It was therefore for the jury to say whether the act causing the injury was one naturally connected with the due performance of the work, or whether it was the result of negligence on the part of the blacksmith, Allison.
As to the final objection, we are clear that in this case the question whether Allison, was a vice principal or a fellow servant jvas one of law for the court, and not a question of fact for the jury. Under certain conditions, undoubtedly, the question can become a mixed question of law and fact, in which case it is proper to submit the question to the jury under instructions to find one way or the other as they find the facts to exist, but where the relation of the parties is undisputed, the question is ordinarily one of law.
The judgment is affirmed.