Hoseth v. Preston Mill Co.

• Decision Date: 29 June 1908
• Parties: HOSETH v. PRESTON MILL CO.
• Court: Washington Supreme Court

96 P. 423

49 Wash. 682

HOSETH v. PRESTON MILL CO.

Supreme Court of Washington

June 29, 1908

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Personal injury action by Frank Hoseth against the Preston Mill Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Shank & Smith, for appellant.

Martin J. Lund and Vince H. Faben, for respondent.

RUDKIN J.

This action was instituted in the court below to recover damages for personal injuries. At the time of receiving the injuries complained of, the plaintiff was in the employ of the defendant in one of its logging camps, and was standing near a cable extending from the logging engine out into the forest for the purpose of transmitting signals from the men in the forest to the engineer. In transmitting the signals the plaintiff stood within 10 or 12 feet of a large stump to which a snatch block was anchored for the purpose of holding the cable in place. The snatch block was fastened to the stump by a leadline which was wrapped 1 1/2 times around the stump, and a swamp hook attached to the end of the line was hooked or fastened into the body of the stump. While the plaintiff was occupying this position, the strain on the cable caused the swamp hook at the end of the leadline to give way, and the hook or line struck him, fracturing his leg and arm. The specific acts of negligence charged in the complaint were the use of a defective and inadquate hook and the failure to securely fasten the hook in the stump. The answer denied the negligence charged in the complaint, and alleged affirmatively contributory negligence on the part of the plaintiff and negligence of a fellow servant. The trial resulted in a judgment in favor of the plaintiff, from which the defendant has appealed.

In the course of the trial, the appellant offered to prove that the swamp hook and leadline which caused the injury were afterwards used for two or three days in the same work while in the same condition, and with the same set in the stump, and that they worked perfectly. This testimony was competent and should have been admitted. Tremblay v Harnden, 162 Mass. 383, 38 N.E. 972; 2 Labatt, Master &amp Servant, § 822.

Testimony was received, however, showing the use of the same appliances, in the same manner, for a period of 18 months prior to the accident, and we do not think that the exclusion of testimony tending to show a like use for two or three days after the accident would be sufficiently prejudicial to warrant a reversal. The appellant further offered to prove that a man could not remain in its logging camp for a single day without hearing many times a warning to keep away from the leadline. The appellant might doubtless show the nature of the warnings given, how often the warnings were repeated and the opportunity of the respondent for hearing the warnings; but the conclusion that the respondent could not remain about the camp for as much as a day without hearing the warnings many times was for the jury, and not for the witnesses. There was no error in the ruling complained of.

The appellant objected to the following question propounded to one of its witnesses on cross-examination, for the reason that the question was not based on any issue in the case; but the objection was overruled: 'Q. Suppose that a hook weighing 150 pounds, or 100 pounds, or 60 pounds, we will say, was flying around that stump with such terrific force as might be expected in a case of this kind, and the hook and strap became disengaged from the pulley and shear block. Don't you think it had sufficient force to travel probably 100 feet, if there was nothing in the way?' There was no pretense that the hook or strap became disengaged from the pulley or shear block, and what might or might not happen in such a contingency would seem utterly immaterial in this case. The objection should have been sustained.

On the question of contributory negligence, the court instructed the jury as follows: 'The court instructs the jury that the plaintiff would not be entitled to recover if he by his own negligence contributed to his injury; that is, if such negligence on his part was the proximate cause of the injury, and that the accident would not have occurred had it not been for the negligence of the plaintiff.' The giving of this instruction is assigned as error. The particular objection urged against the instruction is that the jury were left to infer therefrom that the negligence of the servant alone must be the proximate cause of the injury in order to defeat a recovery. The true rule is that if the combined negligence of the master and servant is the proximate cause of an injury, and the negligence on the part of the servant proximately and naturally contributes to that injury, there can be no recovery. McLeod v. Spokane, 26 Wash. 346, 67 P. 74. Whether the instruction as given was misleading or not we need not inquire, as the judgment must be reversed on other grounds.

The giving of the following instruction is further assigned as error: 'I instruct you that the master and servant do not stand upon an equal footing, even when they have equal knowledge of the danger. The position of the servant is one of subordination and obedience to the master, and he has a right to rely upon the superior skill and knowledge of the master. The servant is not entirely free to act upon his own suspicions of danger.' The instruction complained of was followed by these instructions: 'If you believe from the evidence that it was dangerous to stand or be near the stump where this accident is alleged to have occurred, and that the danger of such position was alike open and obvious to the master...