Jensen v. Shaw Show Case Co.

• Decision Date: 25 November 1913
• Citation: 136 P. 698,76 Wash. 419
• Parties: JENSEN v. SHAW SHOW CASE CO.
• Court: Washington Supreme Court

136 P. 698

76 Wash. 419

JENSEN v. SHAW SHOW CASE CO.

Supreme Court of Washington, En Banc.

November 25, 1913

Appeal from Superior Court, King County; Wilson R. Gay, Judge.

Action by Kirstine Jensen, as administratrix of the estate of Martin Jensen, deceased, against the Shaw Show Case Company. Judgment for defendant, and plaintiff appeals. Reversed, with directions.

Martin J. Lund, of Seattle, for appellant.

John P Hartman, of Seattle, for respondent.

GOSE J.

This action is brought to recover damages under the factory act (Rem. & Bal. Code, § 6587 et seq.). The husband of the plaintiff administratrix sustained an injury, from which he died two days later, while operating a circular ripsaw in the factory of the defendant company. He was a cabinet maker and accustomed to the use of saws. There were two saws in the factory, one a trimmer or cut-off saw and the other a ripsaw. He was engaged in cutting panels to an exact size, and while thus engaged, and when the saw had passed through the panel or just as it was about to do so, the board kicked back and struck him in the abdomen. At the close of the plaintiff's testimony the defendant moved for a nonsuit which was denied, and at the close of all the testimony defendant moved for a directed verdict, which was also denied. There was a verdict for the plaintiff. Following the return of the verdict the defendant moved for a judgment non obstante and in the alternative for a new trial. The motion for new trial was denied, and the motion for a judgment non obstante was granted, whereupon a judgment was entered in the defendant's favor. Plaintiff has appealed.

The testimony submitted by the appellant tends to prove that the respondent failed to provide a practicable or efficient safeguard for the protection of its workmen while operating the ripsaw; that the only practicable guard is a spreader or splitter, an upright piece of steel fastened to the saw table a few inches back of the saw. The purpose of this appliance is to spread the board so that it will not pinch the saw. The testimony is to the effect that kickbacks come from pinching; that is, that the saw picks up the material and throws it toward the workman. Several witnesses testified that with a spreader the injury could not have happened. The respondent had installed a guard over its saws which had been approved by the commissioner of labor whose certificate it produced and filed as an exhibit. The guard provided is a hood made of woven wire, hung upon gas pipe suspended from the ceiling, to be lowered and adjusted by the workmen. The jury inspected the factory during the trial and watched an operator put a panel through the saw with and without the use of the hood.

The first proposition advanced by the respondent to sustain the judgment is: '(a) If a good and sufficient guard is furnished for a machine and a workman skilled in the business of using the machine is instructed to use the guard by the employer, but does not use it, then is the workman injured on the machine guilty of contributory negligence when said injury could not have happened had the guard been used?'

The crucial question is: Who shall determine the sufficiency of the guard? The Constitution, art. 1, § 21, provides that the right of trial by jury 'shall remain inviolate.' This provision is pregnant with meaning. The courts have no right to trench upon the province of the jury upon questions of fact. It is only where there is no evidence, either direct or circumstantial, which warrants the verdict of the jury that the courts may interfere. In proper cases the jury is an arm of the court; its province is to find the facts; and the province of the court is to declare the law.

A number of witnesses testified that the guard provided was cumbersome and inadequate; that it could not be used upon polished wood such as the deceased was working upon at the time he sustained the injury. The reason assigned is that it would scratch the wood. Witnesses also testified that the hood was never used, and that the respondent's foreman admitted its impracticability. They further testified that, had a spreader or splitter been used, there could have been no pinch; hence no kickback and no injury. Upon these facts it was clearly a question for the jury whether the guard provided complied with the factory act. The Legislature could have provided that the certificate of the labor commissioner as to the sufficiency of the guard would be conclusive, but it did not do so. It made it simply prima facie. Rem. & Bal. Code, § 6593. In other words, it left the question of the sufficiency of the guard to be determined by the jury, like other questions in the case. The factory act (Rem. & Bal. Code, § 6587) requires the employer who operates a factory to 'provide and maintain in use' reasonable safeguards where it is practicable to guard the machinery with which an employé is 'liable to come in contact' while in the performance of his duty.

Except in unusual cases, such as where the minds of reasonable men could not differ, it is for the jury to determine whether the employer has complied with the provisions of that act. Benner v. Wallace Lumber & Mfg. Co., 55 Wash. 679 105 P. 145; Young v. Aloha Lumber Co., 63 Wash. 600, 116 P. 4; Vosberg v. Michigan Lumber Co., 45 Wash. 670, 89 P. 168; Noren v. Larsen Lumber Co., 46 Wash. 241, 89 P. 563; Boyle v. A. & M. Lumber Co., 46 Wash. 431, 90 P. 433; Tergeson v. Robinson Mfg. Co., 48 Wash. 294, 93 P. 428. The respondent relies on Daffron v. Majestic Laundry Co., 41 Wash. 65, 82 P. 1089, Johnston v. Northern Lumber Co., 42 Wash. 230, 84 P. 627, and Burns v. Leudinghaus, 65 Wash....