Jasper v. Bunker Hill & Sullivan Min. & Concentrating Co.

• Decision Date: 15 October 1908
• Court: Washington Supreme Court
• Parties: JASPER v. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO.

97 P. 743

50 Wash. 570

JASPER v. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO.

Supreme Court of Washington

October 15, 1908

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Martin Jasper against the Bunker Hill & Sullivan Mining &amp Concentrating Company. From a judgment for defendant plaintiff appeals. Reversed and remanded.

Robertson & Rosenhaupt, for appellant.

Myron A. Folsom, for respondent.

DUNBAR J.

Plaintiff was employed, and had been for several years, as a jig tender in the defendant's concentrating plant at Kellogg, Idaho. A jig is a piece of machinery which separates the ore from the quartz. The complaint alleges that Knut Home was the defendant's general foreman, with full power of direction, etc.; that on the 20th of April, 1905, while separating ore by use of these jigs, there being a great number in the mill, the belt, by reason of the negligent construction of said machinery, came off the line shaft pulley at jig No. 18; that the foreman directed plaintiff to take his place where the belt was on the local pulley at jig No. 18, and to hold the belt onto said pulley while he, the foreman, attempted to replace the belt upon the line shaft pulley, and, briefly, that he obeyed orders; that the foreman negligently used an old, frayed rope that was too long, and undertook to replace the belt while the machinery was running at full speed; that the rope became entangled in the belt and gearing, and, catching plaintiff's arm, caused him to be severely injured; and asked for judgment in the sum of $4,000. The answer, in effect, denied that Home was a vice principal, but alleged that he was a mere night boss, and at the time a fellow servant; denied that the machinery or appliances were in any way defective, and pleaded assumption of risk by plaintiff. On the conclusion of all the testimony the court took the case from the jury and entered judgment for defendant.

From the remarks of the court, made in disposing of the case, it is apparent that it acted on the assumption that the appellant had assumed the risk of the dangers of the situation. The pertinent testimony in this case is not very voluminous, and we have examined it carefully, and from such examination conclude that it was peculiarly a proper case for submission to a jury. Certainly if the testimony of the appellant was true that he was ordered by the foreman to take the position that he did take; that he relied upon the foreman's ordering the machinery slowed down, as he testified was the custom; that an unsafe appliance, viz., a frayed out rope that was dangerously long was used by the foreman without appellant knowing, at the time, what kind of a rope was being used--it is difficult to see how the doctrine of assumption of risk can be applied. The testimony is absolutely conflicting as to the powers of the foreman, or night boss as he is termed by the respondent. If the testimony of the appellant is true, there is no question but that Home was a vice principal, although we are not prepared to say that the converse would be true, conceding the truthfulness of the testimony of the respondent. But in any event, it cannot be said...