Bailey v. Cascade Timber Co.

• Decision Date: 02 July 1904
• Citation: 35 Wash. 295,77 P. 377
• Parties: BAILEY v. CASCADE TIMBER CO.
• Court: Washington Supreme Court

77 P. 377

35 Wash. 295

BAILEY v. CASCADE TIMBER CO.

Supreme Court of Washington

July 2, 1904

Appeal from Superior Court, Pierce County; W. H. Snell, Judge.

Action by Martin Bailey against the Cascade Timber Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed conditionally.

John A. Shackleford and E. M. Hayden, for appellant.

Govnor Teats, for respondent.

HADLEY J.

This case was once before in this court, and the opinion upon the former appeal will be found reported in 73 Pac., at page 385. For a statement of the issues and facts we refer to that opinion without repetition here. At the first trial, when the evidence of both parties had all been introduced, the defendant moved that the court discharge the jury and render judgment for the defendant, which motion was granted. This court reversed the judgment on the ground that there was evidence which should have been submitted to the jury, and the cause was remanded for a retrial. At the second trial the jury returned a verdict for the plaintiff. Thereupon the defendant moved for a new trial, which was denied, and judgment was entered in accordance with the verdict. The defendant has appealed.

Many alleged errors are assigned relating to the instructions given by the court and to the refusal to give certain requested instructions. In argument appellant groups what it claims to be the principles involved in its assignments of error under the following general statement: 'Appellant contends that whether proper appliances for moving the tank had been furnished by the master was a question for the jury whether the work of moving the tank was an ordinary detail of the work of the crew was a question for the jury; and that it was for the jury to say whether it was the duty of the hook tender to select, from those on hand, the appliance to be used in attaching the line to the tank, or whether such selection was a part of the duty of the rigging sliger, as an incident to his duty to use and attach the appliance. By the instructions all of these questions were taken from the jury.' The different assignments relate to segregated parts of the instructions. It is our duty to examine the instructions as a whole, and determine whether, when construed together, they fairly state the law applicable to the case. Referring to the first proposition included in the above statement of counsel--that is to say, that it was a question for the jury whether proper appliances had been furnished by the master--the court did specifically state to the jury that one of respondent's allegations was that appellant had neglected to furnish a reasonably safe and suitable swamp hook or appliance for the work to be performed in the removal of the tank; that the burden of proof as to the respondent's allegations was upon him; and that, even if the jury should find the defendant negligent in not having furnished suitable appliances, still respondent was not entitled to recover for wrong alleged unless it was shown by the evidence to be the proximate cause of the injury. We think the instructions sufficiently left it with the jury to say whether suitable appliances had been furnished or not.

The next criticism as to the instructions suggested by counsel's statement is that it was a question for the jury whether the work of moving the tank was an ordinary detail of the work of the crew, it being contended that, if it was such, then the duty of the master did not extend to the supervision of details such as the selection of appliances, and that injuries arising from such circumstances should be held to be due to the neglect of a fellow servant and not of the master. We said of the circumstances of this case when it was here before, as follows: 'We think the circumstances were such that it ought not to be said that the selection of appliances could properly be left to the judgment of a fellow servant, but that such duty properly rested with the master acting through a directing mind supposed to be skilled from experience in such matters.' It will be remembered that the station of respondent at the location of the donkey engine was such that his safety depended upon the security of the appliances used to connect with the heavy tank. He was at a distance from the tank, and his duty called him to remain at his post ready to control his engine in accordance with signals given him. He had not the opportunity to inspect the appliances used unless he left his post for that purpose, and such was not his duty. His situation was such that, if the appliance...