Erickson v. E.J. McNeeley & Co.

• Court: Washington Supreme Court
• Writing for the Court: [41 Wash. 514] MOUNT, C.J.
• Citation: Erickson v. E.J. McNeeley & Co., 84 P. 3, 41 Wash. 509 (Wash. 1906)
• Decision Date: 30 January 1906
• Parties: ERICKSON v. E. J. McNEELEY & CO.

84 P. 3

41 Wash. 509

ERICKSON v. E. J. McNEELEY & CO.

Supreme Court of Washington

January 30, 1906

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by Martha K. Erickson against E. J. McNeeley & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

Root J., dissenting.

Reynolds & Griggs and Bell & Austin, for appellant.

Hathaway & Alston and E. W. Bundy, for respondent.

MOUNT, C.J.

The respondent, as the widow of W. A. Erickson, deceased, brought this action against the appellant to recover damages occasioned by the death of her husband in appellant's mill. The complaint, in substance, alleges that the respondent is the widow of W. A. Erickson, deceased; that the appellant owned and operated a shingle mill in Everett, and that her said husband was employed by appellant in said mill that his duties were to work near a circular saw 44 inches in diameter; that, while exercising due care, her said husband slipped and fell into said saw, and was killed. The negligence alleged is that appellant neglected and failed to guard said saw, although the same could have been guarded advantageously, and that said appellant failed to furnish her husband with a safe place in which to work. Appellant answered the complaint, and alleged that it owned the mill but denied that it was operating the said mill at the time of the death of Mr. Erickson; denied that it employed Mr Erickson, or that he was working for appellant at the time of his death, and denied any neglect of duty. As a first affirmative defense appellant alleged that, on January 1 1904, some five months before the injury, it had leased the said mill to one J. R. Palmer, who, at the time of the accident, had full charge of the mill and machinery, and employed all the men, including the said W. A. Erickson, and was manufacturing shingles for the appellant at the rate of 52 cents per thousand on his own account; that appellant had nothing whatever to do with the mill, or the men in charge thereof, or employed therein. As a second affirmative defense the answer alleged that the saw in question was as thoroughly and advantageously guarded as it was possible for the same to be guarded and operated; that said W. A. Erickson was furnished a reasonably safe place in which to work; that the dangers thereof were open and apparent, and well known to said Erickson, and were the usual risks and dangers incident to his employment; and that he assumed the risks thereof. As a third affirmative defense the answer alleged that the death of said W. A. Erickson was caused solely by a want of proper care and caution on his part, and was due solely to his contributory negligence. As a fourth affirmative defense the answer alleged a full and complete settlement and satisfaction of the cause of action stated in the complaint, by the payment of $500 by said J. R. Palmer, the lessee of the mill, to one George P. Rossman, an attorney for the respondent; said attorney having full power and authority from the respondent to make the settlement. Respondent in reply denied all the allegations of the affirmative defenses, and in reply to the affirmative matter contained in the fourth affirmative answer alleged that the said attorney, Rossman, had no authority to settle the claim for less than $5,000, and that said Palmer had notice thereof prior to the time of the alleged settlement; that immediately after she was notified of the settlement for $500 she repudiated the same, and returned the money which was sent to her. Upon these issues the cause was tried to the court and a jury, which returned a verdict in favor of the respondent for $5,000. The appeal is prosecuted from a judgment rendered upon the verdict.

There is no dispute as to how the accident happened which caused the death of W. A. Erickson, and there is no dispute as to the condition of the saw, or the mill in which the death occurred. The facts in relation to these matters are substantially as follows: The mill was owned by the appellant. It is located on the water front in Everett. To the west of the mill logs were kept in a boom in the water. These logs were brought up out of the water through a log chute, and into the west side of the mill through an opening about 12 feet wide by 8 feet high. About 15 feet from this opening, and at right angles to the log chute, was a large drag saw, operated by steam power, which saw was used to cut logs into blocks about 16 inches long. These blocks, when cut from the log, dropped onto a deck about 10 feet wide by 12 feet long, which was called a 'sapping' deck. In the southeast corner of this sapping deck, on a level and connected with it, was the power bolter's saw carriage. This carriage was about 4 feet wide by 8 feet long, covered over the top with sheet iron. It was a movable platform with a slit running lengthwise down the center. Through this slit the saw revolved as the carriage moved back and forth along the saw. Immediately to the south of the center of this carriage and opposite the slit was located a stationary circular saw 52 inches in diameter. This carriage and saw were used for the purpose of splitting round blocks into bolts, suitable for the shingle machines. Round blocks, one or more at a time, were taken from the sapping deck and placed upon the power bolter's carriage, over the slit therein, and then, by means of a lever, the carriage was caused to run forward into the saw, which would cut the round blocks into the proper size. By reversing the lever the carriage would move back to its position in the southeast corner of the sapping deck. The blocks would then be removed from the carriage, and more round blocks placed thereon. At the end of this carriage next to the saw, an iron frame extended across the carriage. At the place of the slit in which the saw revolved, this frame extended higher than the saw, forming a yoke or bow which permitted the saw to pass through. This frame served to make the carriage solid at that end, and also as a guard to protect blocks from rolling into the saw prematurely. There was ample light in the mill about the sapping deck and power bolter's saw and carriage. The machinery was all in good order and repair. W. A. Erickson, deceased, was employed as power bolter's helper in the mill. His duties were to take round blocks from the sapping deck and place them upon the power bolter's saw carriage. He used a short iron hook in turning, rolling, or lifting the blocks, when necessary to place them upon the saw carriage. He had been engaged in this work for about 8 or 9 days previous to the day of the accident. On May 13, 1904, at about 4 o'clock in the afternoon, a round cedar block was lying on its circumference with the axis of the block at right angles to the power bolter's carriage, and within a foot or so of the carriage, not far from the southeast corner of the sapping deck. It was within 4 or 5 feet of the saw, which was revolving from 900 to 1,400 revolutions per minute. The saw was unguarded, except for the iron inverted Ushaped frame at the end of the carriage next to the saw. The shingle block was a cedar block 16 inches long, 2 or 3 feet in diameter, and weighing from 75 to 100 pounds. The circumference of the block was covered with a thin bark. Mr. Erickson came up to the block for the purpose of rolling or sliding it onto the power bolter's carriage. He stood with his back toward the saw, being between the block and the saw. He reached down with his hook, which he struck into the east end of the block, being the end nearest him. The hook caught in the wood of the block just under the bark. He then pulled toward himself hard enough so that the wood and bar gave way, which caused him to lose his balance and fall backward upon the saw. His head was severed from his body. The other facts in the case necessary to an understanding of the points presented will be stated hereafter in connection therewith. At the conclusion of the respondent's testimony, and again at the conclusion of all the testimony in the case, the appellant moved the court for a directed verdict, upon the grounds that respondent's husband met his death by a risk which was open and apparent, and therefore assumed; that all the testimony showed that he was guilty of contributory negligence; that he was employed by J. R. Palmer, who was an independent contractor, for whose negligence appellant was not liable; and that the cause of action had been settled and discharged.

It may be conceded in this case that, but for the provisions of the factory act of 1903, respondent's husband assumed the risk which caused his death. The mail was well lighted, and all the...