Engirbritson v. Tri-State Cedar Co.

• Citation: 157 P. 677,91 Wash. 279
• Decision Date: 20 May 1916
• Docket Number: 13021.
• Court: United States State Supreme Court of Washington
• Parties: ENGIRBRITSON v. TRI-STATE CEDAR CO.

157 P. 677

91 Wash. 279

ENGIRBRITSON v. TRI-STATE CEDAR CO.

No. 13021.

Supreme Court of Washington

May 20, 1916

Department 1. Appeal from Superior Court, Spokane County; Edward H Wright, Judge.

Action by Halver Engirbritson against the Tri-State Cedar Company. From a judgment for the defendant, the plaintiff appeals. Affirmed.

O. C Moore and R. P. Woodworth, both of Spokane, for appellant.

Cannon & Ferris, of Spokane, for respondent.

MOUNT J.

Action for personal injuries. On issues joined and trial to the court with a jury, a verdict was returned in favor of the plaintiff. Thereafter the defendant filed a motion for judgment notwithstanding the verdict, and, in case of a denial of that motion, for a new trial. The plaintiff also filed a motion for a new trial, claiming that the verdict was insufficient by reason of passion and prejudice on the part of the jury. On considering these motions the trial court granted the defendant's motion for judgment notwithstanding the verdict, and dismissed the action. The plaintiff has appealed.

The facts are as follows: The appellant was employed by the respondent in logging operations conducted in Idaho. The appellant was a man 30 years of age, and had followed this character of work for 4 years. He was thoroughly competent to do the work for which he was employed. At the time of the accident, the appellant and another employé were directed by the foreman in charge of the defendant's logging operations to saw down a tree upon a hillside. This tree was about 2 feet in diameter at the butt and about 110 feet in length. The appellant was directed to fall the tree norizontally along the hillside in order that the logs might be readily rolled onto a nearby skidway, and because to fall it down hill, as was customary, might endanger the lives of men who were employed at that point getting ready to move the camp. The appellant sawed the tree down, and it fell horizontally with the hill. Part of his duties after falling the tree was to cut it up into sawlogs. While no specific direction was given to cut this tree into sawlogs after it had been felled, that was the understanding, and he proceeded to do the work with his companion. After sawing off five logs, each 16 feet in length, and when they were working near the top end of the tree, and had cut off the sixth log, that log would not separate from the rest of the logs which had been cut off and the appellant took his axe and tapped the log on the upper side, so that it rolled out from between the other logs, and down the hill. After it had gone about 20 feet, it struck another tree, which happened to be dead at the top. The concussion caused the top of the standing tree to break and fall. The falling top struck the appellant upon the leg, causing his injury. The appellant was then sent to a hospital, where he was treated for some time. He alleges that he was maltreated, and sought damages for the alleged negligence of the defendant in directing the tree to be fallen lengthwise of the hill, and also for malpractice of the physician who treated him. These are substantially the facts as testified to by the appellant. We think there can be no doubt that the appellant assumed the risk, because he was fully aware and knew of the dangers incident to falling the tree horizontally along the hillside. He was as fully aware of the danger of rolling a log down the hill as the master could have been.

It is argued by the appellant that the respondent selected an unsafe and improper method of performing the particular work, and thereby created an unsafe place for the performance of the work, and for that reason was negligent. But it is apparent that whatever danger there was in the work was as apparent to the appellant as it was to the respondent. As we have seen, the appellant was experienced in this kind of work. The dangers were open and apparent, and he was as able to determine the conditions which had arisen by reason of his work as the master could have been had the master been present and personally directing what should be done. This case, upon this branch of it, is controlled by the cases of Fisher v. Stone & Webster, 67 Wash. 176, 121 P. 44, and Anderson v. Columbia Improvement Co., 41 Wash. 83, 82 P. 1037, 2 L. R. A. (N. S.) 840. In the former case we said:

'The foreman was not present when the tree was cut. He had previously directed the plaintiff to fall the tree out of the right of way. The plaintiff undertook to do so without further direction, and did so successfully, although the tree leaned toward the right of way. The plaintiff probably knew where the tree was going to fall, by the way he cut it. He, no doubt, could see, after it started to fall, where it was going and what trees

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