34 Wash. 556 | Wash. | 1904
This is an action to recover for personal injuries received in a shingle mill. At the trial the court granted a challenge to the evidence, interposed by the defendant at the close of plaintiff’s testimony. The cause was withdrawn from the jury, motion for new trial was denied, and judgment was entered dismissing the action. The plaintiff has appealed.
There was evidence before the jury to the following effect: That appellant went to respondent’s mill earljr in the morning and asked the foreman for work, but the latter asked him if he had ever before worked in a shingle mill, to which he answered that he had not; that the foreman then went with appellant to the knee-bolter, showed him how to put blocks in the conveyor, and then went away; that, as the foreman was leaving, appellant
Respondent contends that no negligence on its part was shown, that appellant’s injury resulted from his contributory negligence, and that the place where he put his hand was obviously dangerous. It will be remembered, however, that appellant was without experience in working about such machinery. He so informed the foreman before he began to work. With that knowledge, the foreman, as the master’s representative, ordered him to work at the knee-bolter, and instructed him to follow the directions of the operator thereof. The latter therefore became the master’s delegate in the matter of instructions as to appellant’s work. Appellant was instructed hy tho operator to remove the slabs as he saw him do it. He saw the operator do it successfully, and with no harm ful result. He attempted to do it in the same way, but failed, probably from lack of equal skill and experience. He testified that he did not know that the saw would vibrate in the manner in which it did. Being without such knowledge, either from former experience or by warning from respondent, we think it should not be said, as a matter of law, that he should have known of the danger, especially in view of the fact that he had seen a slab removed by the master’s representative, who placed his hand at the same place, and who instructed him to do likewise.
Appellant was not. employed as one having skill or experience for the work in hand, but as one who expressly
It has been so often held by this court that the question of contributory negligence is ordinarily for the jury that it seems unnecessary to cite the cases upon that subject. The only exception to the rule is that the facts must be such as show want of care to that degree which leaves no room, in the minds of reasonable men, for difference of opinion. We do not view the testimony submitted by appellant as presenting such facts. They are just such as may cause reasonable men to hesitate to say that appellant negligently contributed to his injury. In such a case, the facts are to be submitted to the twelve men who constitute a department of the court established by law for that purpose. In Christianson v. Pacific Bridge Co., 27 Wash. 582, 68 Pac. 191, the court discussed the relative positions of master and servant, as relating to the right of the servant to rely upon the master’s directions as to where the former shall work. It was there shown, by the cases cited and discussed, that the two
The judgment is reversed, and the cause remanded with instructions to the lower court to grant a new trial.
Fullerton, C. J., and Anders and Dunbar, JJ., concur.