Benner v. Wallace Lumber & Mfg. Co.

• Decision Date: 16 November 1909
• Citation: 55 Wash. 679,105 P. 145
• Court: Washington Supreme Court
• Parties: BENNER v. WALLACE LUMBER & MFG. CO.

105 P. 145

55 Wash. 679

BENNER v. WALLACE LUMBER & MFG. CO.

Supreme Court of Washington

November 16, 1909

Department 2. Appeal from Superior Court, Snohomish County; Jeremiah Neterer, Judge.

Action by Archie Benner against the Wallace Lumber & Manufacturing Company to recover for a personal injury. From a judgment for plaintiff, defendant appeals. Affirmed.

Roberts & Hulbert, for appellant.

Lyter &amp Folsom and S. G. Murray, for respondent.

CROW J.

This action was originally commenced by Archie Benner, an infant by Mary Benner, his guardian ad litem, against the Wallace Lumber & Manufacturing Company, a corporation, to recover damages for personal injuries sustained. Prior to the trial the plaintiff attained his majority, and now prosecutes the action. From a judgment in his favor, the defendant has appealed.

The appellant owns and operates a shingle mill in Snohomish county, in which the respondent, a young man about 20 years of age, was employed as a shingle packer. The mill was equipped with three knot saws, and occasionally the appellant directed the respondent to operate one of them. He had worked on the saw at different times to the total amount of 17 1/2 days. The saw was adjusted on an arbor immediately in front of, and about 18 inches from, the sawyer. Slightly above the saw was a shelf or table, on which were the shingles which were to be trimmed by the sawyer. The edge of the table, when properly constructed, so extended over the saw as to leave only a small portion thereof exposed, thus serving as a safeguard for the protection of the sawyer. Immediately in front of the sawyer, and slightly below the level of the table, was a sliding carriage upon which he placed the shingles he intended to trim. He then pushed the carriage under the table, carrying the shingles against the saw and trimming them. The sawyer was compelled to reach the table for the shingles, and in doing so passed his hand above the level of the saw. On the morning of the accident appellant's foreman directed him to operate the knot saw. About 3 o'clock in the afternoon, as respondent withdrew his hand after reaching over the table for shingles, it in some manner came in contract with the saw and was severely injured. In his complaint and on the trial, he contended that the appellant was guilty of negligence in failing properly to safeguard the saw, and that he was injured by reason thereof.

The first, and as we regard it the controlling, contention made by the appellant, is that the trial court erred in denying its motion for a directed verdict. It contends that the saw had been properly guarded, but that the guard had been removed and replaced from time to time by appellant's employés, certain other knot sawyers, for their own convenience in performing their work. There was evidence tending to show that when the saw was first installed, and the table was first constructed, some years prior to the accident, the edge of the table had been sufficiently extended to constitute a practical safeguard. It was further shown: That from time to time the knot sawyers would chop out or saw off the edge of the table, leaving greater portions of the saw exposed; that other knot sawyers before commencing work would nail on a band or cleat to again extend it and more securely guard the saw; and that the various sawyers, from time to time, made these changes according to their own ideas. Appellant therefore contends that, when it, as the master, had properly constructed the table to serve as a guard, it had discharged its full duty, and that if the sawyers thereafter removed, changed, or added to the guard, the appellant was not guilty of negligence in failing to install or maintain the same. This contention cannot be sustained. Whenever a master employs a servant or changes the character of his work, it is the master's duty at the inception of and during such employment to furnish the servant a reasonably safe place in which to work, and to also comply with the requirements of the factory act in properly safeguarding saws and other dangerous machinery, where guards are practical. Whether an employé has willfully changed, removed, or destroyed a proper safeguard, provided by the master, might become a material issue if such servant, being injured, should attempt to recover damages; but no such issue is now before us. There is ample evidence in the record to show that, when the appellant directed the respondent to commence work on the saw, it was not then properly guarded, a fact the master should have known, and that by reason of the absence of a proper guard the respondent was injured. A reckless or negligent servant might willfully remove a proper guard that had been provided by the master. Another servant more cautious and conservative might himself voluntarily perform the duty of the master by restoring the guard before commencing his work. The respondent did neither. He was under no obligation to provide or change the guard. He commenced work upon the saw in obedience to the order of the master, and the only question to be determined is whether it could be, and was then, guarded, as required by the factory act. As above stated, the appellant introduced considerable evidence to show that it was the custom of knot sawyers to repeatedly change, remove, or add to, the guard to suit their own convenience, and in substance contended that, when it had once properly safeguarded the saw, it had discharged its duty, and that the custom of the employés constituted a sufficient excuse to relieve it of any charge of negligence resulting from its subsequent failure to restore the guard. The statute not only requires that guards be provided, but also that they be maintained in use. Section 1, c. 205, p. 448, Sess. Laws 1907.

The appellant cites Johnston v. Northern Lumber Company, 42 Wash. 230, 84 P. 627, and Daffron v. Majestic Laundry Company, 41 Wash. 65, 82 P. 1089, and contends, on the authority of those cases, that it is relieved from liability for negligence by reason of the fact that it had properly safeguarded the saw. There is a marked difference between the facts of the case at bar and those of the cases cited. In the Johnston Case the guard had not been changed or removed. It had been in use for a number of years. It had not only been properly installed, but had been also maintained. The servant had been working at the machine with the same guard during all of that time. The contention there made was that some guard other than the one actually used should have been adopted. In the Daffron Case it appeared that a proper guard had been provided. Here the fact seems to be that no practical or proper guard whatever was provided for the knot saw, at the particular time the respondent went to work, or during the time he continued at work. If the appellant could excuse its neglect by relying upon the action of the knot sawyers in...