O'Brien v. Page Lumber Co.

• Decision Date: 08 August 1905
• Citation: 39 Wash. 537,82 P. 114
• Court: Washington Supreme Court
• Parties: O'BRIEN v. PAGE LUMBER CO.

82 P. 114

39 Wash. 537

O'BRIEN v. PAGE LUMBER CO.

Supreme Court of Washington

August 8, 1905

Appeal from Superior Court, Pierce County; Thad Huston, Judge.

Action by William O'Brien against the Page Lumber Company. Judgment for defendant. Plaintiff appeals. Reversed.

George W. Saulsberry and Chas. Bedford, for appellant.

Hudson & Holt, for respondent.

MOUNT, C.J.

This appeal is from a judgment in favor of defendant, rendered upon motion for a directed verdict at the close of plaintiff's evidence. Plaintiff appeals.

The material facts, as shown by the pleadings and plaintiff's evidence, are briefly as follows: In the year 1902 the respondent owned and operated a sawmill at Buckley, in Pierce county, Wash., for manufacturing lumber. The appellant William O'Brien, was employed in the mill as a 'dogger.' This employment required the appellant to ride backwards and forwards on the saw carriage, and to attach the 'dogs' to the log on the carriage. These dogs were devices for holding the logs securely in position to saw. It was also the duty of the dogger to detach the dogs at the direction of the sawyer when the log was to be turned upon the carriage, and to perform such other duties as were required of him by the sawyer. The saw crew consisted of the sawyer, one tail sawyer, two doggers, and one setter. All of these men were under the supervision and control of the sawyer, and were bound to obey his orders. They took their orders from him, and no one else. If they failed to obey him, they were discharged upon his recommendation to the superintendent. Over the sawyer there was a superitendent, who had general control over the whole mill, and who employed and discharged the men. The appellant was an experienced dogger, and thoroughly familiar with the work. Near each end of the saw carriage was a 'head block,' about two feet in height, against which the ends of the logs were securely held by the dogs. Stationary in the floor of the mill along the line of the carriage way was a device called a 'nigger,' which consisted of a piece of timber with iron spikes along the upper side. This 'nigger' was a powerful machine, used in striking and pushing heavy logs onto the carriage and for turning them thereon when desired. It was operated by steam power by the sawyer, by means of a lever, and in no other way. There was also a chain device overhead, operated by steam power, for rolling logs on the carriage and for turning them while on the saw carriage. The saw carriage was operated back and forth by steam power, by means of a lever in the hands of the sawyer. On the 31st day of July, 1902, a log 32 inches in diameter and 24 feet long was placed upon the saw carriage to be cut into lumber. After the log had been cut upon three sides, the sawyer desired it to be turned over on the carriage so as to be cut upon the other side. He moved the saw carriage back for the purpose of using the nigger to turn the log. The dogs were released and the force of the nigger was applied to the log. The carriage had not been moved back far enough for the stationary nigger to strike the log in the center. It struck nearer the end at which appellant was working. Instead of turning the log over upon the carriage the nigger lifted the end of the log near appellant and placed it upon the head block, where it rested. The sawyer thereupon directed appellant to remove the end of the log from the head block back onto the carriage. Appellant, in obedience to the order, procured a peavy or cant hook, and was attempting to pry the end of the log back onto the saw carriage. He was standing with his back toward the sawyer, in plain view of the sawyer, who, without warning to appellant again applied the nigger to the log as it lay upon the head block. The force of the blow of the nigger knocked the end of the log over the head block, and the weight of the log caused the appellant to drop his peavy. The other end of the log toward the sawyer slid in the opposite direction, and struck and broke the lever, which started the saw carriage forward at full speed, with the log crosswise, and raking the sides of the mill. Appellant, in order to escape the log, attempted to get through a door on the side of the mill. As he did so the log caught his left hand, injuring it so that the amputation of three fingers was necessary.

There are two charges of negligence in the complaint: (1) That the sawyer was negligent and careless in applying the nigger to the log without warning while appellant was trying to pry the log off the head block; (2) that the company was negligent in employing an incompetent and reckless sawyer, who was addicted to the use of alcoholic liquor. It is contended on this appeal that the evidence was sufficient to go to the jury...