King v. Page Lumber Co.

• Citation: 119 P. 180,66 Wash. 123
• Court: Washington Supreme Court
• Decision Date: 02 December 1911
• Parties: KING v. PAGE LUMBER CO.

119 P. 180

66 Wash. 123

KING v. PAGE LUMBER CO.

Supreme Court of Washington

December 2, 1911

Department 2. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by Gilbert King against the Page Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James B. Murphy, for appellant.

H. G. &amp Dix H. Rowland and Davis & Neal, for respondent.

CROW J.

Action by Gilbert King, a minor, by Mary King, his guardian ad litem, against the Page Lumber Company, a corporation, to recover damages for personal injuries. From a verdict and judgment in plaintiff's favor, the defendant has appealed.

Appellant contends the trial judge erred in denying its motions for nonsuit and a directed verdict. In presenting its motions appellant contended no negligence upon its part had been shown; that respondent was guilty of contributory negligence that he assumed the risk; and that, if any negligence on the part of any person other than respondent was shown, such negligence was that of respondent's fellow servant. On July 28, 1910, appellant owned and operated a sawmill equipped with machinery, including a saw carriage about 40 feet in length and 10 feet in width, upon which logs were placed for sawing. Upon this carriage were three blocks against which the logs rested when about to be sawed. In connection with each block was a dog, a mechanical apppliance designed to fasten and securely hold the log against the blocks. This dogging apparatus consisted of an upright iron bar about 3 1/2 feet long, 1 inch thick, and 3 inches wide, which curved back towards the east side of the carriage and away from the west side where the saw was operated and the sawyer stood. In the upright bar were holes in which the dog, an appliance used for holding the log, could be adjusted. In connection with each bar and dog was a lever by which the dog could be drawn down and firmly set into the log. This dogging apparatus was operated by an employé known as a 'dogger,' who controlled the dog with the hand and the lever with the other. While performing his work the dogger stood on the east side of the carriage opposite the sawyer, who with a lever operated and controlled the carriage. When a log had been securely dogged, the sawyer caused the carriage to move forward so that the log could be cut by a band saw which, in plain view, passed over certain pulleys. The respondent, a young man 19 years and 6 months of age, had for some time been employed as a laborer in and about the mill, had never worked on or about the saw carriage, and had no experience as a dogger. About half past 7 on the morning of the accident the foreman of the mill, without giving him any instructions, directed him to go upon the carriage and work as dogger. Respondent informed the foreman he had no experience in that work. One Grant, the sawyer, gave him no instructions other than to inform him the work was hurry-up job. About 11 o'clock of the same morning a small cedar log was placed on the carriage. Respondent set and secured the rear dog, but caused it to extend too far across the log. When the log had been sawed to within about four or five feet of the dog, the sawyer noticed the saw would strike the dog. Thereupon he reversed the carriage, and, with a motion of his hand, directed the respondent to take out and reset the dog. Respondent did so, but again placed it too far across the log toward the line of the saw. Again the sawyer stopped the carriage and by the same motion impatiently ordered respondent to take out the dog. The sawyer testified he also leaned over and told respondent, then about four feet away, to take out the dog and leave it out. Respondent testified he did not hear this order. Thereupon respondent removed the dog, and the sawyer immediately started the carriage. Respondent, thinking he was again directed to reset the dog, continued to do so, but, just as he brought the dog down upon the log, the saw struck and injured him. The sawyer noticed respondent's last movement in time to stop the carriage, and prevent the dog from breaking the saw, but not in time to prevent respondent's injury.

Respondent's allegations of negligence in substance were (1) that appellant did not instruct him or warn him of the dangers incident to his employment; (2) that the sawyer, who at the time was acting as appellant's vice principal, suddenly and without warning or notice to respondent started the carriage towards the saw.

We have carefully examined the evidence, and conclude the issues of appellant's alleged negligence, respondent's alleged contributory negligence, and assumption of risk were for the consideration of the jury, and that the motions were properly denied. Appellant's counsel have presented their contentions in a thorough and able manner in their brief, and also on oral argument. They seem impressed with the idea that the evidence utterly fails to show negligence on appellant's part, but that it does show respondent's negligence. The question before us is not whether the weight and convincing force of the evidence was with appellant, but whether there was evidence sufficient to require a submission of the issues of fact to the jury and sustain their verdict. In determining this question, it is the duty of an appellate court to regard and construe the evidence most favorably to respondent. In Newcomb v Puget Sound, etc., Boiler Works, 54 Wash. 419, 103 P. 456, this court in passing on the appellant's motions for a nonsuit and a directed verdict said: 'The appellant's brief shows its positive conviction that the evidence overwhelmingly preponderates in its favor. * * * The appellant's mistake on this appeal is that it fails to appreciate the force of the evidence given by the respondent, which of itself is sufficient to sustain the verdict. The jury were entitled to credit him. * * * The most that can be said in behalf of appellant is that the evidence was conflicting; the respondent's statement being denied by other witnesses.' The evidence, although disputed, was unquestionably sufficient to show respondent was inexperienced; that he had worked as dogger only a few hours; that he received no instructions other than to be told his work was a hurry-up job; that the setter who worked on the carriage found it necessary to aid him, and did so;...