Curtin v. Clear Lake Lumber Co.

• Decision Date: 08 October 1907
• Citation: 91 P. 956,47 Wash. 260
• Parties: CURTIN v. CLEAR LAKE LUMBER CO.
• Court: Washington Supreme Court

91 P. 956

47 Wash. 260

CURTIN v. CLEAR LAKE LUMBER CO.

Supreme Court of Washington

October 8, 1907

Appeal from Superior Court, Skagit County; George A. Joiner, Judge.

Action by Frank B. Curtin against the Clear Lake Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Rudkin and Crow, JJ., dissenting in part.

Kerr & McCord, for appellant.

Smith &amp Cole and Robert H. Lindsay, for respondent.

HADLEY C.J.

This is an action to recover damages for personal injuries. The plaintiff was at the time of the accident in the employ of the defendant, and the latter, in the prosecution of its business, was then clearing a right of way, and had its employés engaged at the place of the accident in cutting trees. The plaintiff was severely injured through being struck by a flying limb from a falling tree. He charges that the defendant was negligent in not giving him warning of the falling of the tree, so that he might have sought a place of safety, and thus have protected himself. Negligence was denied by the defendant, and it alleged contributory negligence on the part of the plaintiff. The answer also alleged that the dangers were open and apparent, and that plaintiff assumed the risk of the danger. It was further averred that the injuries were due to the negligence of a fellow servant. The cause was tried before a jury, and a verdict was returned in the plaintiff's favor for the sum of $1,500. Judgment was entered upon the verdict, a new trial having been denied, and the defendant has appealed.

It is first assigned that the court erred in denying appellant's motion for nonsuit; but, as we have repeatedly held, any error in the denial of this motion was waived by appellant when it proceeded to introduce testimony upon its own behalf, and thereby elected not to stand upon its said motion. Thereafter the sufficiency of all the evidence to sustain a verdict for respondent must be considered, and not that offered by the respondent alone.

The next assigned error, however, raises the sufficiency of all the evidence; it being contended that the court should have granted a new trial for lack of evidence sufficient to sustain the verdict. The evidence showed that appellant's representative, who was especially delegated by it to superintend its work at that time and place, directed the respondent and another to proceed to cut down certain of the larger trees with a saw. While they were thus engaged, this foreman went to a place a short distance from them, and began cutting a smaller tree with an ax. While respondent and his companion were still sawing upon their tree, the foreman's tree fell, and, in its descent, it struck another tree, thereby causing a limb to be thrown, which injured the respondent. The evidence is all in practical accord as to the foregoing, and it is therefore evident that, if the foreman was negligent in such a manner as to proximately cause the injury, his neglect became that of his principal, the appellant. It was also practically conceded by all the witnesses that it is a general custom among woodsmen to shout 'Falling tree!' or other equivalent words, when a tree is to fall as a warning to others in the vicinity to look out for their safety, and that woodsmen in general expect to be protected by such warning. The respondent testified that no warning whatever was given, and that he had no notice of the falling of the tree until it struck the other tree, when it was too late for him to reach a place of safety. Two witnesses, one the superintendent of appellant and the other an employé testified that respondent stated in their presence just after the surgeon had dressed his wounds that the foreman did shout a warning. The respondent flatly denied that he made any such statement. There was thus a sharp conflict in the testimony upon this material point, and neither the trial court nor this court should undertake to say under the evidence in the record what testimony the jury should have credited. The weight to be attached to the testimony of the several witnesses was for the jury to determine. Under the instructions of the court, the jury by the verdict must have found that respondent's testimony was true, and that no warning was given. Such being an established fact in the case, it follows that appellant's negligence is also established, and that the verdict is thereby sustained.

A number of errors are assigned upon the court's refusal to give instructions in the form requested by appellant. We believe the instructions which the court gave covered fully and fairly every proper legal phase of the case, and that no prejudicial error was committed in the refusal to instruct in the language requested. It is urged that the court erred in giving the following instruction: 'I instruct you gentlemen of the jury, that you are not to draw any inferences from the absence of witnesses in this case, unless you should further find that the...