Hage v. Luedinghaus

• Decision Date: 30 November 1910
• Citation: 111 P. 1041,60 Wash. 680
• Court: Washington Supreme Court
• Parties: HAGE v. LUEDINGHAUS et al.

111 P. 1041

60 Wash. 680

HAGE v. LUEDINGHAUS et al.

Supreme Court of Washington

November 30, 1910

Department 1. Appeal from Superior Court, Lewis County; A. E. Rice Judge.

Action by M. B. Hage against Frank W. Luedinghaus and another. From a judgment for plaintiff, defendants appeal. Reversed.

Graves & Murphy, C. H. Winders, and James B. Murphy, for appellants.

G. E Hamaker, for respondent.

PARKER J.

This is an action to recover damages for personal injuries alleged to have resulted to the plaintiff from the negligence of the defendants while working for them as a chaser and signalman in their logging operations in Lewis county. By his complaint the plaintiff alleges negligence on the part of the defendants as follows: 'That on or about the 13th day of April, 1909, the plaintiff while engaged in his duty as a chaser in said crew as was customary, was stationed by S. Hover, the hook-tender of said crew, and vice principal of defendants, at a point about 100 feet distant from the donkey engine, along and near the wire cables extending from the donkey engine, to a log attached thereto. That, between the place where plaintiff was stationed as aforesaid and said wire cable, there was a large firtree, and it was the duty and duty and custom, acting under orders of said Hover, to take and receive orders and signals from said hook-tender, S. Hover, and then go to a place where plaintiff could be seen by the engineer and communicate the same to him, by means of waving his hand. That the only place plaintiff could communicate the orders and signals to the engineer was a place on the same side of the said tree that the wire cable was on, said place being a place attended with great danger of being injured by being struck with the wire cable, when the donkey engine was started, and it was the duty and custom of the donkey engineer to take and receive the signals from plaintiff from said place, and then wait until plaintiff could go to the opposite side of the tree from where the cable was situated, a safe place, before starting the engine to draw a log in. That on said date the plaintiff, in pursuance of his duty and orders from said hook-tender, received a signal and order from said hook-tender and vice principal of defendants, who directed him to go on the same side of the said tree where said wire cable was situated and communicate the same to the engineer or person in charge of the donkey engine, said order or signal being to start the engine to draw in the log, and while plaintiff was in the act of carrying out his orders received as aforesaid, plaintiff was in the act and duty of raising his hand to signal the engineer, when the engineer, or person in charge of the engine, without waiting for plaintiff to go behind said tree, his said place of safety, and without warning, suddenly and violently started said donkey engine, causing the wire cable to swing violently, striking plaintiff's face, causing the loss of 13 teeth, breaking and causing the loss of 4 large pieces of bones of the lower jaw, cutting and bruising his face, and permanently disfiguring plaintiff's face for life. That the person who was in charge of said donkey engine, and who was operating the same, when plaintiff was injured as aforesaid, was said fireman, who is known to plaintiff as Tom Powers and sometimes known as Tom Rouse, but whose true name is unknown to plaintiff, but is known to the defendants. That he was careless, negligent, and incompetent in the discharge of his duties as engineer, and he had never had any experience as a donkey engineer, and was not an engineer at all, and that his carelessness, negligence, and incompetency were well known to the defendant, and the regular engineer, vice principal of the defendants, yet the said defendants, the said Sanders, the regular engineer and vice principal of defendants, and the said Hover, hook-tender and vice principal of defendants, retained him in their employment and intrusted him with the duty of running, operating, and handling said donkey engine, and taking and receiving orders and signals from plaintiff. That the carelessness, negligence, and incompetency of said person in charge of said engine at the time the plaintiff was injured as aforesaid was wholly unknown to plaintiff at that time. That it was the duty of the defendants to provide a reasonably safe place for the plaintiff to work, and the duty of reasonable inspection to see if that condition is preserved, and the duty to employ a competent engineer at all times to run and operate said donkey engine, all of which the defendants, their agents, servants, and vice principals, carelessly and negligently failed, neglected, and omitted to do; and it was entirely owing to the carelessness and negligence of the defendants, their agents, servants, and vice principals, to provide a safe place for plaintiff to work, and reasonable inspection to see that that condition was preserved, and the negligence of said S. Hover, hook-tender and vice principal, in directing and ordering plaintiff into the dangerous place where he was injured, and the carelessness and negligence of the defendants in employing a careless, negligent, and incompetent engineer to run and operate said donkey engine, and the carelessness, negligence, and incompetency of said Tom Powers, sometimes known as Tom Rouse, whose true name is unknown to plaintiff, the person who was employed and allowed to run and operate said engine, in failing to give plaintiff time to reach his aforesaid station of safety, and his suddenly and violently starting said engine without warning or in any manner allowing plaintiff to escape from said danger, that plaintiff was injured. That the danger attending plaintiff's obeying the order of said hook-tender, and going to said place to give said signal to the said person in charge of said engine, was not apparent to the plaintiff, and was not such as ordinary care and prudence on the part of plaintiff could have been avoided.' By their answer the defendants deny the negligence charged against them and affirmatively plead contributory negligence and assumption of risk on the part of the defendant; also, that plaintiff's injuries, in so far as they resulted from the negligence of any one other than himself, were the result of the negligence of his fellow servant. A trial before the court and a jury resulted in a verdict and judgment for the plaintiff in the sum of $1,420.83, from which the defendants have appealed.

The principal contentions of learned counsel for appellants are that the trial court erred in denying their motion for a nonsuit at the close of respondent's evidence, and in denying their motion to withdraw the case from the consideration of the jury and for judgment in appellants' favor at the close of all of the evidence. These contentions call for an examination of the evidence touching respondent's allegations and contentions: (1) That he was ordered by the hook-tender into a dangerous place; (2) that the appellants negligently employed an incompetent person to run the engine; (3) that the engine was negligently started by such incompetent person; and that all of these negligent acts concurring caused the injury. Let us notice each of these in order, in the light of the evidence viewed most favorably to respondent's contentions.

Was respondent ordered into a dangerous place? Appellants were engaged in logging operations, and respondent, who was experienced in the work, had been employed by them several days as chaser and signalman. The crew with which he was working was using a donkey engine and wire cable in the usual manner, engaged in drawing logs from the woods for loading upon cars. The crew was in immediate charge of a hook-tender, whom it may be conceded was vice principal and not a fellow servant of respondent. It was the duty of the respondent as signalman to be stationed at some convenient point between the hook-tender and the engine, and receive signals from the hook-tender and communicate them to the man in charge of the engine, thus directing the starting of the engine when the cable is attached to a log ready for moving it. The necessity of having such a signalman arises from the fact that the hook-tender, whose duties require him to be at the end of the cable, is usually out of view from the engine as he was in this instance. The signalman is free to choose his own station; the only requirement being that he is expected to station himself so that he can readily communicate the signals from the hook-tender to the engine. At this time the respondent was communicating the signals by motions with his hands, which is one of the very common ways of such communication. It is more or less dangerous to be near the cable when the engine is pulling upon the cable, especially when starting to pull upon it, as it is liable to swing...