43 Wash. 402 | Wash. | 1906
This is an action for personal injuries. The record discloses that the appellant was engaged in the business of operating a lumber mill, and that the respondent was one of its employees. At the time the accident happened which resulted in his injury, the respondent was operating a saw known as the cut-off saw
At the time of the accident, the timber pieces passing the main saw onto the two rollers were ten inches by ten inches in size and of various lengths. These were being passed down to the cut-off saw two at a time, and the sawyer was expected to cut through both of them with one pull of the saw. At one of such trials the respondent was unable to do this, the saw losing its speed too fast, owing perhaps to the excessive friction, and it was let back so that it might regain its original momentum. At the time of letting the saw hack, the respondent gave 'to the offbearer operating the live rollers what he testifies was the signal to hold them as they were; and again pulled the saw onto the timbers for the purpose of completing •the cut. The offbearer at the same time started the live rollers which caused them, to carry other timbers against the timbers the respondent was cutting, pushing them against
The grounds of negligence which the respondent set out in his complaint as the proximate cause of the injury were, that the offbearer who started the rollers was incompetent and careless ■ and known to he so- by the appellant, and that the cut-off saw was defective in that it had several large flaws in it near the circle of the collar used to fasten it onto its shaft; which flaws, it is alleged, were also known, or with reasonable diligence could have been known, to the appellant. The appellant for answer denied the allegations of negligence contained in the complaint, and for an affirmative defense alleged, that the appellant by the terms of his employment had assumed the risk of injury from the saw; that he was guilty of negligence which contributed to his injury; and that the injury was caused by the negligence of his fellow servant. The affirmative allegations of the answer were put in issue by a reply, and a trial was had, which resulted in a judgment for the respondent in the sum of $3,375.
In his original complaint, the respondent alleged that the name of the offbearer in charge of the live rollers at the time he was injured was - Christo, further alleging that his first name was not known by him. When the ease was called for trial, the respondent asked for leave to amend the complaint by inserting the true name of the offbearer therein, which he averred was Gust Perala instead of -Christo. The appellant objected ta the application on the ground of surprise, contending that it had coma prepared to defend the case on the theory that Christo and not Perala was the
It is next contended that the evidence shows' that the respondent was guilty of negligence contributing to his injury, and that the injury suffered by him was one incident to the nature of his employment, and was a risk assumed by him. On the question whether or not the respondent was guilty of negligence there was a substantial dispute in the evidence. If the respondent’s testimony is to he believed, the immediate fault causing the accident was the fault of the offbearer; that he started the rollers in disobedience and in spite of the
It is said further, however, that the act complained of is the act nf a fellow servant, and that the master is not responsible! for injuries arising from the negligence of fellow servants. The fact and the general result flowing from the fact are undoubtedly correctly stated. But the respondent nowhere disputes either of these propositions, when stated as general rules. His contention is that the offbearer was careless and negligent in the performance iof his duties, a fact known to the appellant hut unknown to the respondent, and that, in spite of its knowledge, the appellant put the offbearer to work at a place where his carelessness and negligence was liable to result in injury to the respondent, without informing him of his danger. And it is on the proof of these facts that the respondent bases Ms right to. recover, not on proof of mere negligence alone on the part of a fellow servant. Whether or not he proved them was a question for the jury. He introduced, substantial evidence in their support, and the ascertainment of that fact precludes any further inquiry on the part of this court.
It is contended, also., that the respondent failed to prove that the defects in the saw were known to the appellant, or could have been ascertained by it by the exercise of reasonable diligence. It is true that certain witnesses for the appellant did testify that flaws, such as were shown to exist in this saw, would not be visible until after the saw was broken, and could not he ascertained by any of the ordinary tests.' But there was evidence, also, to the contrary, aud the question was one, moreover, .on which the jury were at liberty to determine from the whole of the evidence, a part of wMctk
The appellant submitted a number of instructions, which it requested the court to give to the jury. These were not given as submitted, and error is predicated thereon. A comparison of the instructions given with' the instructions requested, however, shows that all that was material in the requested instructions were included in the instructions as given. This is sufficient to satisfy the rule. The court is not obliged to give a requested instruction in the language of counsel, even though the request may be couched in proper language and be otherwise proper in itself. It is enough if it gives the substances of the request im suitable language of its own choosing. In this ease the charge of the court cowered the law of the entire case, and was rather a model of brevity and clearness-. The jury could not have been better informed had the court substituted for it the charge prepared by the appellant.
The judgment is affirmed.
Mount, C. J., Crow, Rudkin, and Dunbar, JJ., concur.