Columbia & P.S.R. Co. v. Hawthorn

• Decision Date: 16 January 1888
• Citation: 19 P. 25,3 Wash.Terr. 353
• Court: Washington Supreme Court
• Parties: COLUMBIA & P. S. R. CO. v. HAWTHORN.

19 P. 25

3 Wash.Terr. 353

COLUMBIA & P. S. R. CO. v. HAWTHORN.

Supreme Court of Territory of Washington

January 16, 1888

Appeal from Third district court.

Action for personal injuries, brought by Willard C. Hawthorn against the Columbia & Puget Sound Railroad Company. Judgment for plaintiff, and defendant appeals.

Greene, Hanford, McNaught & McGraw for appellant.

Struve, Haines & McMicken, for appellee.

LANGFORD, J.

In this case the appellee brought his action against the appellant to recover $15,000 for an injury received by the appellee from the fall of a pulley from the machine of appellant upon appellee. The said machine was what is known as a "trimmer" in appellant's saw-mill. Appellee was employed by appellant to operate this machine, and, while operating it, received the injury. Appellee claims that the accident was caused by a latent defect in the machine without fault upon his part. Appellant claims that there was no real defect in the machine, but that the accident was caused by want of care and skill upon the part of appellee. A jury trial was had, and, before the case was submitted to the jury, appellant moved that the court would take the case from the jury, and enter a judgment against the appellee for costs, and, after the verdict, moved the court to set aside the verdict, and grant a new trial. Both motions were made upon the same ground, to-wit, that the evidence would not support a verdict for the appellee. During the trial, exceptions were taken by the appellant to the admission of certain evidence, to arguments of appellee's counsel, and to the giving and refusing of certain instructions.

We will first consider the motions of nonsuit and for new trial, and the rulings thereon. The injury was caused by the fall of a heavy iron pulley. This fall was caused by the wheel becoming somewhat looser than usual upon the shaft, and thus impinging upon the cap or nut which was on the end of the shaft causing said nut to unscrew and come off, and thereby let the pulley fall. The pulley, in this particular machine, turned in such a way that, when it turned, it impinged against the nut, and unscrewed it. The only proper way to have the nut screwed on is so that the friction would tighten the nut, and this is the only reasonable and safe way to put on the cap or nut. Had this machine been thus constructed, the loosening of the pulley could not have caused the accident. The dangerous condition of this nut upon account of its malconstruction was such that no man running the machine with ordinary skill and care could have discovered this defect, and this defect was utterly unknown to appellee. The appellant claims that appellee, by not oiling the machine, caused the pulley to work too loosely on the shaft, and that this was appellee's fault. There is a conflict of evidence as to whether appellee did properly oil the machine, and it is difficult to determine where the preponderance lies. There is a conflict of testimony as to whether appellee had notice that the machine was dangerous, but there is no evidence that the looseness of the pulley would have caused the nut to work off, and hence the pulley to fall, if the machine had been of the ordinary or proper construction. The proof is positive that, with a proper construction, there would have been no danger of the pulley falling, even if it were as loose as alleged. The notice claimed to have been given to appellee was not notice of the wrongful manner in which the nut was put on. It is concluded that no skill or care could have informed appellee of the real and only danger resulting from the improper cap, and the defect from which alone the accident happened. No particular skill is shown to be required to operate a trimmer, and it is not shown that appellee had not such skill or care as was necessary. If it were, no skill or care could have prevented the nut coming off, and hence the pulley falling, and the consequent injury. The defective manner of fastening on the nut was the sole cause of the danger and accident. This danger was well known to the appellant when it set appellee at work, and could not have been nor was it known to the appellee. The jury would have entirely failed in their duty not to have found a verdict for the plaintiff under this evidence, and the court committed no error in submitting the case to them, and entering a judgment upon the verdict.

As to the verdict of $10,000 being excessive, we do not think it is, as defendant...