41 Wash. 509 | Wash. | 1906
The respondent, as the widow of W. A. Erickson, deceased, brought this action against the appellant to recover damages occasioned by the death of her husband in appellant’s mill. The complaint in- substance alleges, that the respondent is the widow of W. A. Erickson, deceased; that the appellant owned and operated a shingle mill in Everett, and that her said husband was employed by appellant in said mill; that his duties were to work near a circular saw forty-four inches in diameter; that while exercising due care her said husband slipped and fell into' said saw, and was killed. The negligence alleged is that appellant neglected and failed to guard said saw, although the same could have been guarded advantageously, and that said appellant failed to furnish her husband with a safe place in which to work.
Appellant answered the complaint and alleged that it owned the mill, hut denied that it was operating the said mill at the time of the death of Mr. Erickson; denied that it employed Mr. Erickson, or that he was working for appellant at the time of his death, and denied any neglect of duty. As a first affirmative defense, appellant alleged that, on January 1, 1904, some five months before the injury, it had leased the said mill to- one J. E. Palmer, who at the time of the accident had full charge of the mill and machinery, and employed all the men, including the said W. A. Erickson, and was manufacturing shingles for the appellant at the rate of fifty-two cents per thousand on his own account; that appellant had nothing whatever to do with the mill, or the men in charge thereof, or employed therein. As a second affirmative defense the answer alleged that the saw ini question was as thoroughly and advantageously guarded as it was possible for the same to he guarded and operated; that said W. A. Erickson was furnished a reasonably safe place in which to work; that the dangers thereof were open and apparent, and well known to said Erickson, and were the usual risks and dangers incident to his employment, and that he assumed the risks thereof. As a third affirmative defense the answer alleged
Respondent in reply denied all the allegations of the affirmative defenses, and in reply to the affirmative matter contained in the fourth affirmative answer, alleged that the said attorney Rossman had no authority to settle the claim for less than $5,000, and that said Palmer had notice thereof prior to the time of the alleged settlement; that immediately after she was notified of the settlement for $500, she repudiated the same; and returned the money which was sent' to her. TJpon these issues the cause was tried to the court and a jury, which returned a verdict in favor of the respondent for $5,000. The appeal is prosecuted from a judgment rendered upon the verdict.
There is no dispute as to how the accident happened which caused the death of W. A. Erickson, and there is no dispute as to the condition of the saw, or the mill in which the death occurred. The facts in relation to these matters are substantially as follows: The mill was owned by the appellant. It is located on the water 'front in Everett. To the west of the mill, logs were kept in a boom in the water. These logs were brought up out of the water through a log chute, and into the west side of the mill through an opening about twelve feet wide by eight feet high. About fifteen feet from this opening, and at right angles to the log chute, was a large drag saw operated by steam power, which saw was used to cut logs into blocks about sixteen inches long. These blocks when cut from the log dropped on to a deck about ten feet wide by twelve feet long, which was called a “sapping” deck.
W. A. Erickson, deceased, was employed as power bolter’s helper in the mill. His duties were to take round b-locks from the sapping deck and place them upon the power bolter’s saw carriage. He used a short iron hook in turning, rolling, or lifting the blocks when necessary to place them upon the saw carriage. He had been engaged in tbis work for about eight or nine days previous to the day of the accident. On May 13, 1904, at about four o’clock in tbe afternoon, a round
Mr. Erickson came up to the block for the purpose of rolling or sliding it on to the -power bolter’s carriaga He stood with his back toward the saw, being between the block and the saw. He reached down with his hook, which he struck into the east end of the block, being the end nearest to him. The hook caught in the wood of the block just under the bark. He then pulled toward himself hard enough so that the wood and bark gave way, which caused him to lose his balance and fall backward upon the saw. His head was severed from his body. The other facts in the case necessary to an understanding of the points presented will be stated hereafter in connection therewith. At the conclusion of the respondent’s testimony, and again at the conclusion of all the testimony in the case, the appellant moved the court for a directed verdict upon the. grounds, that respondent’s husband met his death by a risk which was open and apparent, and therefore assumed; that all the testimony showed that he was guilty of contributory negligence; that he was employed by J. it. Palmer, who was an independent contractor for whose negligence appellant was not liable, and that the cause of action had been settled and discharged.
It may be conceded in this ease that, but for the provisions of the factory act of 1903, respondent’s husband assumed the risk which caused his death. The mill was well lighted and all the machinery was in good order and repair. There were
The evidence conclusively shows that the saw in question was open and exposed. It was located at the southeast corner of the sapping deck, and was revolving at from- nine hundred to fourteen hundred revolutions per minute. It extended about twenty-four inches above the level of the floor of the sapping deck. The saw was manifestly dangerous to those who were required to work around it or near it, as the deceased was required to do. His work required him to be within six or eight feet of the saw a large portion of the time. If this saw was properly guarded, then there was no negligence on the part of the appellant. If it was not properly guarded, then the company was negligent as a matter of law and the deceased did not assume the risk. Hall v. West & Slade Mill Co., supra; Hansen v. Seattle Lumber Co., ante p. 349, 83 Pac. 102.
Appellant claimed that the iron yoke at the end of the carriage served as a guard, but there was evidence that this iron was no guard at all against dangers to employees; that its only purpose was to hold that end of the carriage solid, and to protect blocks, from coming in contact with the saw prematurely. A glance at the model of the mill, and the photographs contained in the record, convinces us that there is no merit in the claim that this was a proper guard against dangers of the saw, and that its only purpose was as stated
The many cases from this court cited by appellant in its brief upon the question of assumed risk were decided before the passage of the factory act which controls this ease, and do not involve questions where there was a statutory duty to protect employees. The question of assumed risk was controlled in those cases by common law rules which we held, in Hall v. West & Slade Mill Co., supra, do not apply where there is a violation of statutory duty.
Appellant argues that the deceased was guilty of contributory negligence as a matter of law; that his negligence consisted in standing near the saw with his back toward it, in striking his hook into the east end or end of the block toward him, and in pulling against the block with sufficient force to fall backward when the hook pulled out of the block. These facts no doubt tend to show contributory negligence and, if these were the only facts shown, they might be sufficient for that purpose. But there is evidence to the effect that the sapping deck was filled up with blocks; as some of the witnesses stated, the deck was “swamped,” so that it became necessary for the deceased to stand at the southeast comer
The question whether or not the saw could have been advantageously guarded was one of the contested and important facts in the case. During the trial, the court permitted evidence of the fact that the same saw was afterwards guarded in the way some of the witnesses testified it could have been guarded. This evidence was admitted over the objection of appellant’s counsel, and is now alleged as error. The court in admitting the evidence stated that it would be allowed only for the purpose of determining the question whether the saw could have been advantageously guarded at the time of the injury, and the jury were then and subsequently instructed to that effect. The general rule is that the taking of precautions against the future is not to be construed as an admission of responsibilities in the past, and evidence of what has been
Appellant contends that the evidence shows that, at the time of the injury, J. R. Palmer was operating the mill as an independent contractor, and that he alone was liable, if there was any liability in the case. It is true that Mr. Palmer and Mr. E. J. MclSTeeley testified that on January 1, 1904, Mr. MclSTeeley, as president of the appellant corporation, entered into a contract with Mr. Palmer, by which contract the corporation was to furnish the mill and logs necessary to operate it, and that Mr. Palmer was to keep the mill in repair and employ the labor and manufacture shingles at fifty-two cents per thousand for the corporation, for the term of one year, and that at the time of the injury to Mr. Erickson, the mill was being run under such agreement. One or two employees also testified that Mr. Palmer, prior to the time of the accident, told them privately that he was running the mill on his own account. It was admitted, that Mr.
Upon the question of the settlement, it was admitted that the respondent placed the case in- the hands of one Kossman, an attorney, with full power to bind her in any suit or settlement, and that Mr. Palmer was- informed of this fact. There was very strong evidence to the effect that Mr. Palmer was informed that Mr. Kossman’s authority to settle the ease was limited to $5,000, and further that no money would he paid except in the presence of the respondent, and that, after receiving this information, Mr. Palmer went to Mr. Kossman and made a settlement, without the knowledge or consent of
Upon the submission of the ease to the jury, the court very fairly and properly instructed the jury upon each of the points hereinbefore discussed. In fact, the only criticisms of appellant upon the instructions are based upon the questions of assumption of risk, of the admissibility' of the evidence hereinbefore referred to, and that the court refused to give a peremptory instruction for a verdict in favor of the appellant. Our disposition of these questions above makes it unnecessary to further refer to these instructions.
We find no error in the record. The judgment is therefore affirmed.
Crow, Rudkin, Dunbar, Fullerton, and Hadley, JJ., concur.
Root, J., dissents.