46 Wash. 645 | Wash. | 1907
Action for personal injuries. This cause was tried to the court and jury, and a verdict was returned in favor of the plaintiff for $4,000. Subsequently, on motion for a new trial, the verdict was reduced to $3,000, and a judgment entered for that amount. The defendant appeals, and alleges that the court erred, (1) in refusing the continuance upon motion of appellant, (2) in refusing to grant a nonsuit; (3) in giving a certain instruction; and also that the verdict is excessive. We shall consider these alleged errors in the order stated.
(1) On November 10, 1906, the cause was set for trial for December 7 of that year. On December 1, appellant filed a motion for a continuance of the trial on account of the absence of a witness from the state. The motion was denied on December 5, 1906. The affidavit in support of the motion did not show that the same evidence could not be procured
(2) The facts as shown by the evidence are substantially as follows: Appellant, in January, 1906, was operating a sawmill in Seattle. Respondent at that time was employed in the mill as hooktender or deck man. He was injured about six o’clock in the evening of January 19, 1906, after he had been engaged in that particular employment only about ten hours. He had been employed about the mill in other capacities for several months. In the discharge of his duties, the respondent and all the log-deck crew, consisting of three or four other men, were under the direct supervision and control of the sawyer. Just previous to his injuries, respondent was directed by the sawyer to hook a chain around a log on the saw carriage, the object being to turn the log on the carriage by means of the chain, which was operated over a drum above by the sawyer by means of a lever. At that time another large log, some four or five feet in diameter, was lying parallel alongside of the saw carriage and three or four feet away. The log on the carriage was also a large log from two and one-half to four feet in diameter. In order to put the chain around the log on the carriage, it became necessary for the respondent to get down between these two logs and pass the chain under the log on the carriage to a fellow servant on the opposite side. After respondent had done this, the sawyer, without waiting for respondent to escape from between the logs as he was endeavoring to do, so operated the turning gear as to cause the log upon the carriage to roll from respondent until the chain holding the log became taut, when the sawyer immediately, without warning or notice to respondent and before he had time to get beyond the reach of the log, slackened the chain, which permitted the log to roll back toward respondent and against the log lying alongside of the carriage. When respondent saw what had hap
“That, as plaintiff was between said logs and in compliance with the order of said foreman and before plaintiff could reach a place of safety, said foreman negligently and carelessly and without notice or warning to the plaintiff, so operated and set in motion said log carriage as to cause the log upon it to roll from the plaintiff until the chain holding said log was taut, when said sawyer negligently and carelessly and without notice or warning to the plaintiff and before plaintiff had time to get beyond the reach of said log, caused the chain holding said log to slacken, thereby allowing said log to roll back against the person of the plaintiff, resulting in plaintiff’s leg being caught between said logs causing’ a compound fracture of the tibia bone and a simple fracture of the fibula bone.”
It is contended by the appellant that the evidence and the complaint show that the dangers which surrounded the respondent were all open, apparent, and arose in the details of the work, and that the appellant, therefore, is not liable under the rule in O’Brien v. Page Lumber Co., 39 Wash. 537, 82 Pac. 114, and Dossett v. St. Paul & Tacoma Lumber Co., 40 Wash. 276, 82 Pac. 273. It is true that one cause of the injury was the slackening of the chain, .thus permitting the log to roll back against the respondent, and this act was probably a detail of the work in which the sawyer may have been the fellow servant with the respondent, and as to such act alone the respondent assumed the risk. But this act
We think the facts in this case bring it squarely within the Dossett case, the only difference being that in the Dossett case the sawyer failed to give warning that he was going to use the “nigger;” while in this case, if warning was given at all, the sawyer neglected to give respondent any time to escape. In the O'Brien case, supra, we said, at page 546:
“It was the duty of the master, then, to keep the place into which he had sent the servant reasonably safe, or to inform the servant of dangers known to the master, or which reasonably should have been known to him, and which were unknown to the servant. If the sawyer, acting in the place of the master, intended to direct another agency under his control to act in conjunction with the appellant, which agency
It follows, of course, if it is the duty of the master to warn, it is likewise his duty to wait a reasonable time for a servant to escape before placing a dangerous agency in motion. Of course, if the servant, having been warned, manifests a desire to occupy a dangerous place, and does so, and is injured, he no doubt assumes the risk. But the evidence in this case shows that the respondent was using his utmost ability to escape, and that no time was given therefor. We are satisfied that the court did not err in denying the motion for nonsuit.
(3) The court instructed the jury, in effect, that, if they found that it was the rule or custom of the sawyer to warn that he was about to start the machinery and give the hook-tender time to get to a place of safety, then in the performance of that duty the sawyer represented the master, and his failure to warn and give time for respondent to get out of danger was negligence of the master. It follows from what we have said above that this instruction was not erroneous.
Appellant next argues that the judgment is excessive, because it appears- that the injury will probably not remain permanent and that the present shortening of respondent’s leg may be overcome, and his earning capacity will not be diminished. These things being true, the amount fixed by the trial court seems to us to be reasonable, and we are therefore not disposed to make a further reduction in the judgment.
The judgment is therefore affirmed.
Hadley, C. J., Crow, and Fullerton, JJ., concur.