31 Wash. 467 | Wash. | 1903
The opinion of the court was delivered by
— Briefly stated, the respondent was employed by the appellant lumber company, which was oper
Hpon the close of respondent’s testimony, motion was made to take the case from the jury and render judgment
“Whatever may be the exemption of the employer from liability for injuries caused by a danger that is obvious to the injured, such exemption will not be accorded where-the nature of the menace is so uncertain as to cause discussion between the employees and the employer, with the result that the employer dissuades the employee of his apprehension.”
Gundlach v. Schott, 192 Ill. 509 (61 N. E. 332, 85 Am. St. Rep. 348), was also cited, where it was said:
“It is well settled that even though the plaintiff knew of the defect, if the master ordered him to proceed with the dangerous work he did not assume the risk of so doing-unless the danger was so manifest that a person of ordinary prudence and caution would not have incurred it. ‘Even if the servant has some knowledge of attendant danger, his right of recovery will not be defeated, if, in obeying the order, he acts with the degree of prudence which an ordinarily prudent man would exercise under the circumstances. When the master orders the servant to perform his work the latter has a right to assume that the former, with his superior knowledge of the facts, would not expose him to unnecessary perils. The servant has a right to rest upon the assurance that there is no danger, which is implied by such an order. The master and servant are not altogether upon a footing of equality. The primary duty of the latter is obedience, and he cannot be charged witli negligence in obeying an order of the master unless he acts*475 recklessly in so obeying. Whether he acted thus recklessly in obeying his master’s order, or whether he acted as a. reasonably prudent person should act, are questions of fact to be determined by the jury.’ Illinois Steel Co. v. Schymanowski, 162 Ill. 447
citing Offut v. World's Columbian Exposition, 175 Ill. 472 (51 N. E. 651); Myrberg v. Baltimore, etc., Reduction Co., 25 Wash. 364 (65 Pac. 539).
The application of this sentiment may also be made to* the contention that it was the duty of the respondent to have stopped the machinery before undertaking to place? the belt. In addition to this, as we have before said, the respondent in this case was not the directing mind, and the further fact that this was a line shaft, and that it could not be stopped without stopping the machinery of the mill generally, would have had a tendency to deter the-servant from stopping such machinery, especially when he was acting under the direct orders of the master. The-other cases cited by the appellant from this court we do not think are at all in point, and, applying the rule which we have uniformly announced, that this court will not interfere with the verdict of a jury unless it appears-that no two reasonable minds could differ in reaching a conclusion as to the cause of the injury, we do not feel like disturbing the judgment in this respect.
The contention that the court erred in instructing the-jury that, if their verdict should be for the plaintiff, they should find his damage to be in an amount not exceeding-the sum of $25,500, is not tenable. Such instruction was in no sense an expression on the part of the court of an opinion that the plaintiff’s injuries were of such a character that the amount of his damages could be limited only by the prayer of the complaint. It was a simple statement' as to the limitation of recovery under the complaint, andi
The other instructions objected to are as follows:
“In this case if you find that the plaintiff was-injured by the reason of a latent- danger in the belt of which he had no knowledge and of which he could not have known by the exercise of reasonable care and caution, in the place to which he was sent, then you are instructed that if you further find that the accident occurred by reason of such concealed or hidden danger, that your verdict must be for the plaintiff.”
The alleged objection to this instruction is that no reference is made to the nonliability of the master in ease the •defect was such a one as he could not discover by reasonable care and caution, and if this had been all the instruction on that subject, the instruction might be considered •objectionable. o But we have often said, in common with all other courts, that the instructions must be considered •as a whole, and that error cannot be based upon segregated, instructions. On this point it will be found that the in•structions are ample and clear. Bor instance, on page 186 of the statement of facts, the court instructed the jury as •follows:
“In this case it was the duty of the master to furnish a belt which was reasonably safe for the use to which it was put, and if you find from the evidence in this case that the belt by which the accident occurred -was a defective belt, •and that the master had knowledge of that defect through the knowledge of the millwrights, or of its superintendent Broadbent, and knew that the belt was not a safe or proper Belt, then you are instructed the master failed to discharge his duty toward the plaintiff.”
So that the duty of the master, so far as knowledge of •defect is concerned, is plainly set out by the court in this ■.and other instructions. In addition to this, if the court
Finding no error in the instructions, and the questions, of fact having- been submitted to the jury and found against the appellant, the judgment will be affirmed.
Fullerton, C. J., and Mount and Halley, JJ., concur.