Benson v. English Lumber Co.

• Decision Date: 22 January 1913
• Parties: BENSON et al. v. ENGLISH LUMBER CO.
• Court: Washington Supreme Court

129 P. 403

71 Wash. 616

BENSON et al. v. ENGLISH LUMBER CO.

Supreme Court of Washington

January 22, 1913

Department 2. Appeal from Superior Court, Skagit County; Geo. A. Joiner Judge.

Consolidated actions by Helen Benson and another against the English Lumber Company. From a judgment for defendant, plaintiffs appeal. Reversed and remanded for new trial.

Buck, Benson & McLane, of Seattle, for appellants.

Ballinger Battle, Hulbert & Shorts, of Seattle, for respondent.

ELLIS J.

The plaintiffs, aged respectively five and seven years, children of Ole Benson, deceased, brought separate actions by their guardian ad litem to recover for the wrongful death of their father through the alleged negligence of the defendant. Upon motion of the defendant, the two actions were consolidated. The consolidated action came on for trial, and, when the plaintiffs had closed their evidence, the defendant challenged its sufficiency by a motion for nonsuit upon the grounds that the plaintiffs had failed to prove any negligence of the defendant as charged; that the evidence showed that the deceased was guilty of contributory negligence and had assumed the risk; and that, if any negligence was shown it was that of a fellow servant. The challenge was sustained and the action was dismissed. The plaintiffs have appealed.

The material evidence may be condensed as follows: The respondent was engaged in the logging business and conducted it in the ordinary way. The logs were dragged out of the woods upon the ground by a donkey engine placed at the landing. This was done by means of a wire cable extending from the engine, through certain blocks and pulleys, back into the woods, where the cable was fastened to the logs by means of a 'choker.' The crew engaged in this work consisted of several men, among them a 'hook tender,' a 'rigging slinger,' and a 'chaser.' All of the crew were under the control and supervision of the hook tender, who acted as foreman. As such he had charge of and superintended the work. He had immediate charge of the logs, until they had been hauled out of the woods into the clearing about the landing, when the chaser took charge of them and directed their progress the rest of the way to the landing. The deceased was acting in the capacity of chaser. At the time of the accident, a log had been hauled out of the woods by means of the cable, blocks, pulleys, and swivel, under the direction and supervision of the hook tender, a distance of between 400 and 500 feet to a point about 150 feet from the landing. One witness said the log was large and heavy; another that it was not very large nor unusual in any way. At or near that point a part of this more complicated adjustment of the cable, referred to in evidence as the swivel, broke. The hook tender came out of the woods, and it was determined to drag the log the rest of the way by means of a stub line, operated by a direct pulley, without the intervention of blocks or pulleys. The hook tender himself superintended and, with the assistance of the rigging slinger, adjusted this line, attaching it to the choker about the end of the log by means of a steel hook. The deceased was present at the time and, one of the witnesses stated, assisted in the work. The hook tender testified that, when this operation was completed, he told the deceased that 'everything was all right, to go ahead with the log.' He also said that he told the deceased and the other man 'to step back out of the way.' The hook tender himself went back of the log and the rigging slinger, and the deceased went to a position 10 or 12 feet to one side and slightly forward of the log. The hook tender testified that, in case a hook broke, the piece might fly in any direction, back of the log as well as to the side, and that no one could tell which way it would fly. At that instant the engine was started with an even, steady pull, swinging the log around in line with the cable, when the log, becoming somewhat embedded in a small mound of earth, ceased to move, and the hook broke, the cable recoiling toward the engine, and the detached piece of hook flying in the direction of the deceased. Something--no witness testified what--struck the deceased in the forehead, crushing it and causing his death. It seems probable that it was the fragment of hook, as the piece was found at his side immediately after he fell. No one could say who gave the signal to start the engine, but it seems to be admitted that it was the chaser's duty at this stage of the work either to give the signal himself or to notify the signalman to give it. All of the evidence as to the actual accident was given by the hook tender and the rigging slinger, who seem to have been the only near eyewitnesses. They both testified that it was no uncommon thing for the hooks or other parts of the rigging to break in pulling a heavy log, and that the men knew that something was liable to break. The hook tender also testified that the deceased was inclined to be careless about getting out of the way, and had often been warned to be more careful. The hook tender immediately after the accident found the piece of broken hook at the side of the deceased and tossed it away; seeing which, another witness picked it up and positively identified it when it was produced at the trial. Two blacksmiths, of long experience in working with steel and in the making of hooks and other appliances for logging and other purposes, were qualified as experts and, on examination of this piece of hook, testified that it was made of a low grade of tool steel, and that the break showed a defect in the making known as 'cold shut,' caused by bending the steel at too low a temperature. They both testified that a hook made of low grade steel, such as this, was much more brittle and likely to snap, and will stand much less strain than one made of a high grade of steel, and has a less close grain and looks differently when broken. Both testified that a cold shut, such as shown on this fragment, greatly weakened the hook, and that any blacksmith, in making a hook, could detect at once whether there was a cold shut in it.

As a preliminary contention, the appellants claim that the court erred in consolidating the two actions. The actions were brought under Rem. & Bal. Code, § 183, giving a right of action for wrongful death. We have construed this section as granting but one cause of action to be prosecuted in a single proceeding by the heirs or personal representatives of the deceased. Koloff v. Chicago, etc., Ry. Co., 129 P. 398 just decided; Riggs v. Northern P. Ry. Co., 60 Wash. 293, 111 P. 162; Archibald v. Lincoln County, 50 Wash. 55, 96 P. 831; Copeland v. Seattle, 33 Wash. 415, 74 P. 582, 65 L. R. A. 333. The court committed no...