53 Wash. 596 | Wash. | 1909
Plaintiff was employed as a dogger in a sawmill operated by defendant at Tacoma, Washington. One
It will be seen that, when the band saw was running, it did not follow that the live rolls or jump saw were in motion; their movements depended on a friction clutch which gathered power from the main shaft of the mill. When not raised for the purpose of cutting off long timbers or for the purpose of being changed, this jump saw was concealed. It was the duty of Marble, the filer, to change the jump saw when it had become dulled from use. During the forenoon he had been directed to do this, and at noon, after the band saw had been changed, he set about to do as he had been directed. In this work he was generally assisted by the first offbearer who raised the saw by means of the lever while he blocked it from the floor below.
On this particular occasion, the place of the regular off-bearer was filled by a green hand, a Japanese who had no understanding of the English language and who was unfamiliar with the manner of raising the jump saw. Marble
The assignments of error are three in number: (1) That the court erred in denying appellant’s motion for judgment at the conclusion of respondent’s testimony; (£5) in denying a like motion when all the evidence was in, and (3) in refusing to give a peremptory instruction to the jury to return a verdict for defendant. The defenses relied upon are contributory negligence, assumption of risk, and the doctrine of fellow servant.
The testimony shows that there were four and possibly five ways in which respondent could have departed from the mill at the particular time, and escaped injury; but the testimony fairly shows, and the jury must have found, that there was in fact no way provided especially for such purpose. Respondent might have passed over the log carriage if it had been in proper position, and thence out of the mill by the south door, but in doing so he would have also passed over the roller bed and at some distance from the jump saw; or he might have passed out by way of the opening between the edger and the roller bed. He might have gone out around
It is urged that pursuit of a negligent custom cannot be relied upon as a basis for damages. This we admit. But it is a rule that is not without qualification. It is based upon the proposition that there were other safe ways, an assumption which we are not willing to indorse in the instant case. We have said there was no way provided and primarily intended for the use of the workmen in entering and going out of the mill. Workmen were in the habit of using the roller way. The fact that the engine was moving slowly was no notice to the respondent of any danger. He knew that it was customary to raise the jump saw and start the live rolls by the use of the levers provided for that purpose. There was no person at the levers to indicate that either the saw or the rolls might be brought into instant use; and for these reasons we are unwilling to hold, as a matter of law, that respondent assumed the risk or was guilty of negligence in following the custom of the mill hands. In principle we are unable to differentiate this case from the case of Sturgeon v. Tacoma Eastern R. Co., 48 Wash. 366, 93 Pac. 526, wherein the court said:
“The respondent contends that the wood rack in question was not intended for use as a ladder by trainmen in boarding*600 cars, but there was no testimony on this point. On the other hand, trainmen of years of experience testified that it is customary, not only on respondent’s road but on all railroads, for brakemen to board cars such as this in the identical manner in which the appellant attempted to board the car in question. If this custom prevailed and was known to the respondent, or should have been known by the exercise of reasonable diligence, it became its duty to make its wood racks reasonably safe for the purpose for which they were habitually used, regardless of the purpose they were originally intended to subserve.”
From the cases in support of the rule that bars a recovery where the servant voluntarily selects an unsafe or dangerous way when he might have selected a safe one, Mr. Labatt deduces this conclusion:
“The rule thus laid down is evidently intended to be applied only when the method adopted was essentially unsafe, and the other was apparently safe. It will be observed that this conception emerges more or less distinctly in the statements of the rule already given. That it determines, whether expressly adverted to or not, the actual extent and scope of the rule is apparent from the consideration that a doctrine which should predicate negligence, as a matter of law, in cases where the servant is merely chargeable with having adopted the less safe of the two courses which were both reasonably, safe, would contravene the fundamental principle by which the standard of due care is declared to be the hypothetical conduct of a prudent person under the given circumstances.” Labatt, Master and Servant, p. 841.
In Kingma v. Chicago & N. W. R. Co., 85 Ill. App. 188, the court held that it could not hold a section hand, who was struck and injured by a train while walking on the track, when there were several ways over which he could have traveled in safety, guilty of contributory negligence as a matter of law. Such cases must go to the jury under proper instructions based upon the facts of the particular case, saving the question whether the servant did that which an ordinarily prudent man would have done under like circumstances.
In Cooley on Torts (3d ed.), p. 1073, the rule announced in Mast v. Kern, 34 Ore. 247, 54 Pac. 950, 75 Am. St. 580, is quoted, among other authorities, as follows:
“The rule ‘now unquestionably established and supported by the great weight of authority, both in this country and in England, is that the liability of the master depends upon the •character of the act in the performance of which the injury arises, and not the grade or rank of the negligent employe. . . . The true test in all cases by which it may be determined whether the negligent act causing the injury is chargeable to the master, or is the act of a co-servant, is, was the offending employe in the performance of the master’s duty, or charged therewith, in reference to the particular act causing the injury? If he was, his negligence is that of the master, and the liability follows; if not, he was a mere co-servant, engaged in a common employment with the injured servant, without reference to his grade or rank, or his right to employ or discharge men, or to his control over them.’ ”
See, also, McDonough v. Great Northern R. Co., 15 Wash. 244, 46 Pac. 334; Hammarberg v. St. Paul & Tacoma Lumber Co., 19 Wash. 537, 53 Pac. 727 ; Mullin v. Northern Pac. R. Co., 38 Wash. 550, 80 Pac. 814.
It cannot be denied that it was the duty of the master to provide not only a safe place for the employees to work, but a safe way of going in and coming out of the mill. No way
The. judgment of the lower court is affirmed.
Rudkin, C. J., Fullerton, Morris, and Gose, JJ., concur.