76 Wash. 419 | Wash. | 1913
This action is brought to recover damages under the factory act, Rem. & Bal. Code, § 6587 et seq. (P. C. 291 § 61). The husband of the plaintiff administratrix sustained an injury, from which he died two days later, while operating a circular ripsaw in the factory of the defendant company. He was a cabinet maker and accustomed to the use of saws. There were two saws in the factory, one a trimmer or cut-off saw and the other a ripsaw. He was engaged in cutting panels to an exact size, and while thus engaged and when the saw had passed through the panel or just as it was about ¡to do so, the board kicked back and struck him in the abdomen. At the close of the plaintiff’s testimony, the defendant moved for a nonsuit, which was denied; and at the close of all the testimony, defendant moved for a directed verdict, which was also denied. There was a verdict for the plaintiff. Following the return of the verdict, the defendant moved for a judgment non obstante, and in the alternative for a new trial. The motion for new trial was denied, and the motion for a judgment non obstante was granted; whereupon a judgment was entered in the defendant’s favor. Plaintiff has appealed.
The testimony submitted by the appellant tends to prove, that the respondent failed to provide a practicable or efficient safeguard for the protection of its workmen while operating
The first proposition advanced by the respondent to sustain the judgment is:
“(a) If a good and sufficient guard is furnished for a machine and a workman skilled in the business of using the machine is instructed to use the guard by the employer, but does not use it, then is the workman injured on the machine guilty of contributory negligence when said injury could not have happened had the guard been used?”
The crucial question is, Who shall determine the sufficiency of the guard? The constitution, art. 1, § 21, provides that the right of trial by jury “shall remain inviolate.” This provision is pregnant with meaning. The courts have no right to trench upon the province of the jury upon questions of fact. It is only where there is no evidence, either direct or circumstantial, which warrants the verdict of the jury, that the courts may interfere. In proper cases, the jury is an arm of the court; its province is to find the facts, and the province of the court is to declare the law. A number of witnesses testified that the guard provided was cumbersome and inadequate; that it could not be used upon polished wood
The respondent relies on Daffron v. Majestic Laundry Co., 41 Wash. 65, 82 Pac. 1089; Johnston v. Northern Lumber Co., 42 Wash. 230, 84 Pac. 627; and Burns v. Luedinghaus, 65 Wash. 448, 118 Pac. 305. In the Daffron case, the court said:
“The law. is well settled that, where an employer places a guard sufficient to protect against all dangers reasonably to*423 be anticipated, he is not guilty of negligence because the guard fails to protect against an unforeseen danger against which it was not intended as a protection.”
The same view is announced in the Johnston case. In the Bums case the maj ority of the court were of the opinion that the saw had been guarded in the only way in which it could have been guarded. An examination of these cases will show that they are sui generis upon the facts, and that they do not impinge upon the general rule as we have announced it, i. e., that except in unusual cases the question of the sufficiency of the guard must be determined by the jury. This view is made prominent in the Young case, where the court said:
“The court seems, also, to have held that appellant assumed all the risks of working at the saw, because he had been properly instructed and knew something of machinery. This was not ground for a nonsuit, if, in fact, the guard in use was not a reasonably safe one and a reasonably safe guard was practicable, and if, in fact, the appellant would not have been injured had a reasonably safe guard been used. These were questions for the jury.”
The next proposition suggested by counsel for the respondent is:
“(b) When an injury to a workman occurs which might have happened in one of several ways, but there is no evidence as to how it occurred, then is negligence imputable to the employer because of such accident when a saw was being used without the knowledge of the employer and without the workman adjusting a guard for his own protection, which guard would have fully protected him, the workman knowing all the dangers and the risks of the employment?”
The suggestion that the guard was sufficient has been sufficiently met. No one saw the accident, and hence it is argued by the respondent that it is a matter of speculation and conjecture as to whether the panel was pinched and thrown back by the saw, or whether the deceased picked it up and negligently allowed it to catch the saw. The vice of this argument lies in this, that men of large experience in such work testified
The respondent, to sustain this contention, relies upon the case of Peterson v. Union Iron Works, 48 Wash. 505, 93 Pac. 1077. In that case a piece of board was found after the accident near where the operator would ordinarily stand in the discharge of his duty. The board had some marks upon it, indicating that it might have been caught by the teeth of the saw and hurled against the deceased. The court said that these were the only facts or circumstances tending even remotely to show the cause of the accident or how it happened. In this case, as we have already said, men of large experience testified that the marks upon the board indicated to an experienced man that the panel pinched and was thrown upon the saw, and that the marks excluded the inference that the workman himself brought the panel in contact with the top of the saw. In the Young case, supra, in answer to a similar contention, this court said:
“When, from all the circumstances developed by the evidence, it becomes reasonably apparent that the injury oc*425 curred because of an insufficient guard, then, in the absence of contradictory evidence, a nonsuit should not be granted for lack of direct evidence showing just how it occurred. There is no valid reason why the same rule should not apply in such a case as in cases where the master has failed to instruct the operator and warn him of the danger. ‘Where the contact is involuntary or accidental, the inability of the party to fully explain how the accident happened should not be deemed conclusive against him.’ Von Postel v. Lake Sammamish Shingle Co., 51 Wash. 261, 98 Pac. 665.”
Without encroaching upon the constitutional guaranty of trial by jury, this court cannot say, either that the guard furnished by the respondent was adequate, or that there is neither evidence nor justifiable inference of sufficient value to sustain the verdict. The judgment is reversed, with directions to enter a judgment upon the verdict.
Crow, C. J., Ellis, Main, Parker, and Fullerton, JJ., concur.
Mount, J., dissents.