"The facts disclose that respondent, aged 50 years, was employed by appellant in the work of culling staves; that is to say, his duty was to take the bundles of staves down from where they had been piled when unloaded from the car in which they were delivered to appellant's yard, loose the two wires around the bundles, inspect the staves, and throw out the ones which were not suitable for appellant's use. Those discarded were known as culls, and the respondent was what is known among the trade as a stave culler. Each bundle of staves contained 21 or 22 separate pieces, each 33 inches long, and bound together by two wires, making a bundle about 12 inches in diameter. As the staves were unloaded from the railroad cars, the bundles were stacked in a pile made by placing on the ground a row of bundles, on top of which another row of bundles was placed at right angles to the bottom row, the third row of bundles was placed on top of, and at right angles to, the second row, the fourth row the same as the second, and so on. Respondent guesses that the pile which fell on him was about 22 feet high. He took no part in the stacking of that particular pile, but he saw other men working under his foreman do that work 2 or 3 days prior to respondent's injury. At the time of his alleged injury, the pile from which he was taking bundles of staves was about as high as he could reach when standing. However, the pile which injured him was not the pile from which he was removing the bundles of staves, but was a pile standing immediately north of the one from which he was removing the bundles of staves. He says that the two piles of staves were not touching each other, but that there was a little space between them. Neither he nor any one else, so far as he knows, had touched or pushed anything against the pile which fell on him. Immediately_ before it fell there was no noise or shock of any kind, nor was there any wind blowing against the pile. The first he knew of any danger was when he turned to take his bundle from the pile next to him and saw this other pile caving. He then dropped his bundle and ran, but before he could get far enough away a portion of the north pile fell and knocked him to the ground.
"At the time of his injury he was earning 42 cents an hour, but, in view of the fact that he did not work steadily, his average weekly earnings were about $21 or $22.
"Respondent does not know how much of the pile of staves fell upon him. As above stated, the first intimation he had of any danger was when he suddenly saw the pile caving. He immediately started to run, was caught by the staves, and knows nothing more about what portion of the pile fell. Prior to the time he discovered that the staves were caving, he had seen nothing unusual about the pile of staves which fell on him. Respondent testified that during the 18 years he had worked as a stave culler he had helped to pile staves `once in a while.'
"Over the objection of appellant, in answer to a question by his counsel as to whether or not he knew what would make a pile of staves fall, respondent stated that, if the pile was straight and solid, it would not fall; or, if something was put on the side like a piece of rock or a piece of wood, the pile would not fall right away, but some days afterwards it would fall. Respondent testified that sometimes the wires holding the different bundles would break, permitting the staves to become loose; that when a wire would break on a bundle up near the top of the pile, thereby permitting the staves to become loose, the staves would separate and some would fall off the pile; but if the break occurred on a bundle near the middle of the pile it would make the pile a little crooked, make it lean, and it would afterwards fall down; that, where the wire breaks inside and one cannot see it from the outside, the pile changes its shape and afterwards falls. He further testified that, if there are several bundles piled on top of each other, and the wire breaks on one of them on the outside of the pile, and the staves scatter out, that will tip the pile to the outside and all above the break will fall; that he did not know just how much of the taller pile fell off, but that the top part fell. However, he stated that the whole pile of staves did not fall, and no portion of it below the level of the top of the one on which he was working fell.
"Respondent testified that, in case a wire broke as described above, causing the pile to lean (to use his own language), `sometimes it would take it slow; take it, maybe, whole half a day, and nobody can tell when they bust, from the front'; that there were two wires on each bundle, and that, if but one wire broke the pile would first lean before it came down; that this pile was not leaning any; that he heard no wire break; that the ground upon which the pile was resting was level and solid; that the men who built the pile which respondent claims fell and injured him had been doing the same kind a work for a long period of time, several years.
Immediately subsequent to respondent's injury he was placed in an ambulance and taken to Alexie Bros. Hospital, where he remained from June 6, 1921, to June 18, 1921, at which time he went home, and has been unable to work since. In the summer of 1922 he tried to work, but the pain in his back was so severe that he was unable to stand it. He testified that he was hurt all aver, the greater injury being
to his back, legs, and knees; that the staves fell on top of him and knocked him down, bruising and skinning his knees, arm, and head; that at the time of trial his condition was about the same as it had been since the injury; that he suffered pain in his back and legs; that prior to the injury he had none of those pains and was always healthy. Respondent could not remember how long he was confined to his bed, but stated that it was over a year before he could walk a little bit, after which time he walked with a cane, but had been walking without a cane for nearly a year before the trial in February, 1923."
"Dr. A. G. Youngman, in charge of plaintiff's case, testified that he last saw him some two or three weeks prior to the trial; that he did not have any X-ray pictures made to determine whether or not any fracture had occurred, but, so far as he could determine, there had been sprains to the joints of his body from the backbone down, including the spine, hips, pelvis, and knees; that at the time of trial he walked with difficulty, was hardly able to bend over, had pain in his back and joints on pressure and on movement; that he has not been able to work and that the condition is permanent. Dr. Youngman also testified that he treated respondent once in 1918, at which time he was an able-bodied man. He further testified that his condition at the time of trial was slightly better than it was in July, 1921; that so far as he could tell there were no actual dislocations of the joints, but that they were swollen and tender; that the only treatment he gave him was to rub him with ordinary liniments, as a result of which the swelling had disappeared to some extent, but the joints had not become much more supple than they were.
"Dr. D. C. Todd examined plaintiff on November 6, 1922, and again on February...
