Bush v. Independent Mill Co.

• Decision Date: 16 July 1909
• Citation: 54 Wash. 212,103 P. 45
• Court: Washington Supreme Court
• Parties: BUSH v. INDEPENDENT MILL CO.

103 P. 45

54 Wash. 212

BUSH v. INDEPENDENT MILL CO.

Supreme Court of Washington

July 16, 1909

Department 1. Appeal from Superior Court, Pierce County; Geo. T. Reid Judge.

Action by Ida Bush against the Independent Mill Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hudson & Holt, for appellant.

Garvey & Kelly, for respondent.

GOSE J.

The respondent, plaintiff below, is the widow of John Bush deceased, who died on the 9th day of October, 1907, from an injury sustained on the 17th day of June of the same year. The complaint charged, in addition to the facts stated: That on the 17th day of June, 1907, and for some months prior thereto, the appellant was the owner of and engaged in operating a sawmill; that on the day stated the deceased was in its employ as a filer and oiler of the machinery and boxes on the upper deck of the mill; that there was a revolving shaft on the upper deck of the mill about nine feet from the main floor; that there was a collar attached to the shaft by means of an unguarded, projecting set screw; that the set screw could have been effectively guarded; that, while engaged in his regular employment, the clothing of the deceased was caught on the set screw; that the deceased was thrown to the main floor with such violence that his back was broken, resulting in his death on the date heretofore stated. The giving of the statutory notice of the injury was also alleged. The appellant pleaded affirmatively that the injury of the deceased was due to his own negligence, and that it was his duty to properly safeguard the machinery. The case was tried to the jury, which returned a general verdict for the respondent in the sum of $3,200, and made the following special findings: 'Interrogatory 1. Was John Bush injured while stepping over the shaft and set screw on which his clothing was caught? Answer: The evidence did not show that he was injured while stepping over the shaft, but it did show he was caught by said set screw. Interrogatory 2. Did he know that the set screw was there, and that it projected? Answer: Yes. Interrogatory 3. Where was he going, and what was he doing, at the time he was caught by the set screw? Answer: The evidence did not show where he was going or what he was doing at the time he was caught by the set screw. Interrogatory 4. Was there a plank laid to the right, looking north, of the timber for the boxing and end of the shaft, as shown in Defendant's Exhibit No. 4? Answer: Yes, one 8-inch plank. Interrogatory 5. If you find that at the time of the injury to John Bush there was a plank lying to the right, looking north, of the timber for the boxing and end of the shaft as shown in Defendant's Exhibit No. 4, then state whether the plank or planks leading from the ladder to the platform of the canting gear were so placed that a person coming along them could step as safely and conveniently to the said plank lying to the right of the timber for the boxing and end of the shaft, as he could to the plank or planks lying to the left of the said timber and end of the shaft. Answer: No. Interrogatory 6. Do you find from the evidence that there was a guard or protection placed over the set screw complained of in this case, and that John Bush removed it and failed to replace it? Answer: No.' This appeal is taken from a judgment entered upon the general verdict. The evidence shows that the appellant had not complied with the factory act. Laws 1905, p. 164, c. 84.

The appellant, at the time of the injury, was operating a sawmill in a 1 1/2 story building. The principal machinery was on the lower floor. The canting gear was on the upper deck, and was operated by the sawyer at his post on the lower floor, by a rod attached to the line shaft on the upper deck. The end of the shaft rested on a timber about 8 inches square. There was a collar attached to the shaft by a projecting set screw about five-eighths of an inch in length. There was a pulley about 30 inches in diameter between the canting gear and the collar. The distance between the pulley and the set screw was about 11 1/2 inches. There was no floor on the upper deck. A ladder, extending from the main floor to the upper deck, afforded the only way of going from the one to the other. One of the duties of the deceased was to oil the boxing of the canting gear and the line shaft when the machinery was in operation. Just before the accident, and while the machinery was in operation, the deceased took an oil can and ascended the ladder to the upper deck, presumably for the purpose of oiling the boxing. There were three eight-inch boards leading from the ladder to the line shaft, one of which passed to the right of the timber on which the shaft rested. The other two passed to the left side of the timber. After the deceased had been thrown to the lower floor, the machinery was stopped, and an investigation of the cause of the accident was made. The right leg of the deceased's overalls had been torn off, and was wound around the shaft at the point of the projecting set screw. There was a tear in the leg of the overalls, some 10 or 12 inches from the bottom and toward the back part of the leg. The oil can was found a few feet from the set screw, in a slanting position, and a part of the oil had run out. No one saw any part of the accident except the falling of the body. There were two ways of passing the boxing on the shaft to reach the canting gear; one by walking on the 8-inch plank and passing to the right of the east end of the shaft, then turning west to the canting gear. There was evidence tending to show that this way was impracticable, owing to the narrowness of the plank, and because there were scantling lying across it, and because the height of the ceiling made it necessary to go in a stooping posture. The other way was to walk on the two 8-inch planks and step over the shaft at the east side of the pulley. There was evidence tending to show that this was dangerous, because the shaft and set screw were raised about 16 or 18 inches above the plank, and also on account of the pulley which was about 11 1/2 inches from the set screw. The evidence tended to show that both ways were used in going to the canting gear. The deceased at the time of the accident chose the latter way. The evidence tended to show that, when the latter way was used, the party crossing the shaft would take hold of a vertical rod, step over the shaft, turn to the left, and walk to the canting gear. This was the nearer way. The evidence clearly shows that a sunken or safety set screw without a head could have been used, and that there would have been no danger in stepping over the shaft. This method was adopted shortly after the accident.

Numerous errors have been assigned, and the discussion has taken a wide range in the appellant's brief; but the view we take of the case will make it unnecessary to separately consider each of the assignments. It must be conceded that a sunken or a safety set screw could have been used, and that, if it had been used, there would have been no danger in stepping over the line shaft on the upper deck. The proximate cause of the injury--that is, the efficient cause, without which the accident would not have occurred--was the failure of the appellant to use a sunken set screw.

The appellant first urges that the evidence does not show that the deceased was injured while in the performance of his duty. There is no force in this position. It is conceded that it was a part of his duty to oil the boxing on the canting gear and line shaft, and that he did so 8 or 10 times a day. We have seen that he ascended the ladder with the oil can in his hand, presumably for the purpose of discharging this duty. It was therefore a question of fact for the jury to determine whether he was engaged in the performance of his duty when he was injured.

It is next urged that the cause of the accident is so involved in doubt that there can be no recovery. An issuable fact may be proven by direct or circumstantial evidence, or...