Dumas v. Walville Lumber Co.

• Decision Date: 01 August 1911
• Parties: DUMAS v. WALVILLE LUMBER CO.
• Court: Washington Supreme Court

116 P. 1091

64 Wash. 381

DUMAS v. WALVILLE LUMBER CO.

Supreme Court of Washington

August 1, 1911

Department 2. Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Joe Dumas against the Walville Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Roberts Battle, Hulbert & Tennant and Dysart & Ellsubury, for appellant.

Forney & Ponder, for respondent.

ELLIS, J.

The respondent brought this action to recover damages for personal injuries suffered through the falling of a pile of lumber upon him from a dock in appellant's millyard. From a verdict and judgment in his favor, this appeal was taken.

Appellant's sawmill and lumber yard are so arranged that the lumber is taken from the sorting table on trucks drawn by a horse, and the assorted dimensions placed in piles along the sides of the lumber docks. A space about six feet wide in the middle of the docks is kept clear for a truckway. There are three docks, from 12 to 16 feet high, from 16 to 24 feet wide, and from 350 to over 400 feet in length. The north dock here in question is 18 or 20 feet wide, and at the place of the accident is variously estimated at from 11 to 16 feet in height. No witness had measured it. One Adna Hill was yard foreman, and all the men in the yard and on the docks were under his immediate direction. He had the supervision of the piling of lumber, both in the yard and on the docks. On the ground near to and along the side of the north dock were timbers 12 inches square, so placed as to form bottoms or bases for permanent stacks of lumber. From time to time as the piles of lumber accumulated along the edge of the dock through the operation of the truckman, other men working in pairs, also under Hill's direction, would take the lumber from the piles on the dock and stack it on the pile bottoms on the ground below. To do this it was necessary that one man get upon the pile on the edge of the dock and pass the lumber to the other on the ground. Between two and three weeks prior to the accident, the respondent and one James Woosen, both Lithuanians, who speak little English, were hired by appellant to work in the millyard. They had known each other many years, and it appears had worked together in various sawmills from time to time for over a year. At the appellant's plant, respondent had no definite line of employment. The foreman, Hill, testified: 'He did any work he was directed to do, such as piling lumber, loading cars, picking up in the yard, or whatever consisted of yard work.' Between 4:00 and 5:00 o'clock in the afternoon of March 17, 1910, Dumas and Woosen were taken from a distant part of the premises to the place here in question and directed by the foreman, Hill, to remove a pile of 2X4 lumber from the edge of the dock and stack it on the permanent pile bottom on the ground immediately below. Hill took them along the aisle of the dock between the lumber piles to the pile in question, directed them to stack it below, and went away. Neither of the men had ever worked on this part of the dock before. They proceeded in the usual manner, Woosen getting upon the pile, Dumas went below, and Woosen began passing the lumber over the side of the dock to him, and he placing it in position upon the pile bottom. They had been so engaged but a few minutes, only 20 or 24 pieces of timber having been so passed down and placed when a part of the pile fell from the dock upon Dumas, who was stooping over, and inflicted the injuries complained of. While there is much conflict in the evidence as to the quantity of lumber that fell, it is not disputed that he was covered by it, so that it took several men some three minutes to extricate him. Woosen, who jumped from the pile as it started to fall, testified that all but a small part of the bottom of the pile fell. Witnesses for appellant who claim that they saw the lumber on the ground estimate the amount at from 50 to 100 pieces. The negligence charged is that the place where respondent was required to work was unsafe, in that the pile of lumber on the dock directly above was so negligently constructed, under the direction of the foreman and presumably with his knowledge, as to make its fall imminent on any added weight. The appellant contends that no negligence was proved, and that the verdict was based upon mere conjecture as to what caused the lumber to fall. The defenses of negligence of fellow servants, contributory negligence, and assumption of risk were also interposed.

There is an irreconcilable conflict in the evidence as to the dimensions of the pile of lumber and manner of its construction. Woosen, who testified through an interpreter, stated that it consisted of two parts, separated by a space of two inches; the section immediately on the edge of the dock being four or five feet high; the other, between the first pile and the truckway, being six or seven feet high and supported by 2X4 timbers about eight feet apart, standing on end against the first section, extending about two feet above it, and leaning outward toward the edge of the dock. The pieces of lumber in the pile were from eight to twenty-four feet long. He estimated the width of the whole pile at about seven feet. It seems plain that such a pile as he describes would be unstable. The smaller part near the dock's edge would sustain a continual outward pressure from the weight of the other and higher part. The foreman, Hill, testified that the pile was about five feet wide at the bottom, a little more than four feet high, and about two feet wide at the top; that the pile was not in two sections with pieces between; that the timbers were from eight to twenty-four feet long; and that this pile was constructed in the way in which lumber was ordinarily piled along the dock. He was the only witness of appellant who had notice this pile particularly prior to the accident.

The witness Woosen further testified that just before the lumber fell two Japanese truckers brought a truck load of lumber and started to place it on the pile; that he stepped from the lower section where...