Graham v. Allen & Nelson Mill Co.

• Decision Date: 25 March 1914
• Citation: 139 P. 591,78 Wash. 589
• Court: Washington Supreme Court
• Parties: GRAHAM et al. v. ALLEN & NELSON MILL CO.

139 P. 591

78 Wash. 589

GRAHAM et al. v. ALLEN & NELSON MILL CO.

Supreme Court of Washington

March 25, 1914

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by Jennie Graham and another, an infant, by Jennie Graham her guardian ad litem, against the Allen & Nelson Mill Company. From a judgment for plaintiffs, defendant appeals. Judgment set aside, and cause remanded for new trial, unless plaintiffs file a remittitur.

Hughes, McMicken, Dovell & Ramsey and Otto B Rupp, all of Seattle, for appellant.

Walter S. Fulton and Arthur E. Griffin, both of Seattle, for respondents.

PARKER J.

The plaintiffs seek recovery of damages which they claim resulted to them from the death of Eugene F. Graham, their husband and father, caused by the negligence of the defendant, while he was employed in its sawmill at Monohan in King county. The trial resulted in verdict and judgment in favor of the plaintiffs for the sum of $17,500, from which the defendant has appealed.

The principal contention made by counsel for appellant is that the evidence does not support the verdict, and that the trial court erred in refusing to direct a verdict in its favor, or grant a new trial upon that ground. A careful reading of all of the evidence contained in the statement of facts convinces us that the jury was warranted in concluding that the following facts were established thereby: For some time prior to his death, Eugene F. Graham was employed at appellant's sawmill in loading slabs on flat cars. He was an unskilled workman. Two days prior to his death, he was put to work as line-up man, under the direction of the edgerman. He was inexperienced in this work. It was his duty there to attend to the rear end of the large pieces as they came from the head saw to the edger, and assist in lining them up properly for entering the edger to be sawed into pieces of smaller dimension. The edger contained an arbor carrying five circular saws. The pieces entered the edger against the saws under a heavy roller, which held them down and prevented them from being raised by the saws and thrown back in case the saws became heated and bound, which they were apt to do from different causes. It was the duty of the edgerman to operate the edger and, among other things, to raise and lower the rolls, as became necessary upon a piece entering the edger. This was done by means of a lever within reach of the edgerman. The off-bearer was also under the direction of the edgerman. The off-bearer worked near the edgerman and, among other things, assisted in lining up the pieces ready for entering the edger. Emil Fish was acting as edgerman for two days after Graham went to work as line-up man. On the morning of the third day Erickson was employed and put to work by appellant as edgerman. Erickson claimed to be experienced in the work. Appellant's foreman, who employed Erickson, made no inquiry as to Erickson's experience or competency other than inquiry from Erickson himself. The proper operation of the edger requires an experienced man, and is attended with great danger, unless operated with care and skill. Great care is particularly required in keeping the heavy roller down on a piece as it enters the edger, to prevent it being raised by the saws and violently thrown back towards the position occupied by the line-up man. A piece cannot be thrown back from the saws while the roller is kept down upon it, even though the saws do become heated and bind. Erickson went to work as edgerman, Fish, the former edgerman, working by him as off-bearer for the time being, and also instructing him as to the sawing of the lumber in varying dimensions suitable for filling the orders. About an hour after Erickson took charge of the edger, a piece 4 inches thick 30 inches wide and 20 feet long came from the head saw to the edger. Graham took hold of the rear end of it, while Fish took hold of the front end, and they lined it up for entering the edger. It then entered the edger and proceeded but a short distance when the saws, for some reason, became bound and the piece stopped. What then occurred, resulting in Graham's death may be told in Fish's own language as follows: 'I lined it up at my end to go in the edger, and Mr. Graham was at the other end lining it up, and he got the piece lined up far enough so it would go through the edger so it would not bind against the guide. I motioned to Mr. Graham with my fingers, the way I always used them when I was running the edger, but he didn't seem to understand, and at the same time this man Erickson lifted the rollers and Mr. Graham shoved the piece in, and I turned around to attend to the rollers where the slab was coming, and the piece stopped, so just as soon as I heard the motion of the edger I knew the piece was stopped, and I turned around and he raised the rollers, Mr. Erickson, so I motioned to him with my hand to leave the rollers down, and at the same time motioned at Mr. Graham to keep out of the way, and Mr. Graham was still pushing on the piece of timber to get it through the edger. I suppose that he understood from me to leave the piece of timber alone, and he just stood back and sat down on his roller, and I motioned to the edgerman to leave his rollers alone, and at the same time there was a slab come on the rollers, and I turned around to take care of that slab, and, as I turned around, Mr. Erickson lifted the rollers, and, as he lifted the rollers, the cant kicked back and caught Mr. Graham right in the body of the stomach and kicked him about 25 feet from where he stood--from where he set--and killed him instantly.' The piece would not have been thrown back from the edger had not the roller been raised by Erickson while the saws were in motion. The roller should not have been raised by Erickson without stopping the saws, or until he had seen that Graham was away from the rear where the saws were sure to throw the piece if the roller was raised while the saws were in motion.

These facts, it seems to us, clearly sustain respondents' right to recover upon the theory that the raising of the roller by Erickson was negligent; that it was the proximate cause of Graham's death; and that Erickson was a vice principal so far as Graham was concerned. O'Brien v. Page Lumber Co., 39 Wash. 537, 82 P. 114; Dossett v. St. Paul, etc., Lumber Co., 40 Wash. 276, 82 P. 273; Eidner v. Three Lakes Lumber Co., 45 Wash. 323, 88 P. 326; Dyer v. Union Iron Works, 64 Wash. 577, 117 P. 387; King v. Page Lumber Co.,

66 Wash. 123, 119 P. 180; Lackey v. Big Creek Timber Co., 70 Wash. 619, 127 P. 190.

So far as Graham's contributory negligence, relied upon by counsel for appellant, is concerned, we think that question could not have been decided against respondent, as a matter of law, in the light of the evidence tending to show Erickson's duty to keep the roller down, his negligence in raising the roller, the safety to all concerned with the roller kept down, and Graham's inexperience. The argument of counsel for appellant deals largely with allegations of negligence in the complaint relative to defects in the machinery and want of care on the part of appellant in employing Erickson as an edgerman,...