Lackey v. Big Creek Timber Co.

• Decision Date: 28 October 1912
• Citation: 127 P. 190,70 Wash. 619
• Parties: LACKEY v. BIG CREEK TIMBER CO.
• Court: Washington Supreme Court

127 P. 190

70 Wash. 619

LACKEY v. BIG CREEK TIMBER CO.

Supreme Court of Washington

October 28, 1912

Department 1. Appeal from Superior Court, Chehalis County; Ben Sheeks Judge.

Action by H. C. Lackey against the Big Creek Timber Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted.

Teats Metzler & Teats, of Tacoma, for appellant.

Reeves Aylmore, Jr., of Seattle, 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 defendant timber company while he was employed as a fireman for its donkey engine. At the conclusion of the plaintiff's evidence introduced upon the trial, the court granted the defendant's motion for a nonsuit, and dismissed the action upon the ground that the plaintiff's injuires were caused by the negligence of the engineer while acting in the capacity of a fellow servant of the plaintiff if such injuries were caused by the negligence of any one other than the plaintiff himself. From this disposition of the cause, the plaintiff has appealed.

The facts material to our present inquiry may be summarized from the evidence introduced in behalf of appellant as follows: On the ground that the plaintiff's injuries were Lackey, was in the employ of respondent as an engineer in charge of one of its donkey engines. In pursuance of special authority then given him so to do, he on that day employed appellant as fireman for the same engine. Appellant continued to work for respondent in that capacity until September 17, 1911, when he received the injuries for which he seeks recovery in this action. He worked with his brother Thomas Lackey, Clarence Norton, and Roy Clark, each of whom succeeded to the position of engineer in this order. Appellant was under the engineers and subject to their superintendence and control. While the engineers did not have the unqualified power of employing and discharging firemen such employing and discharging were subject to the recommendation of the engineers. There was a general foreman over all the employés, including the engineers. On September 2d the engine was running and appellant performing his usual work of firing until the noon hour. During the forenoon, the engine had become disabled, and needed repairs which, it was evident, it would take some little time to make. As appellant was starting away from the engine to dinner, the engineer, Clark, directed him to come back after dinner and help repair the engine, and to bring with him a jackscrew. Upon his return after dinner with the jackscrew, he found the engineer and W. A. Hastie, another employé, at work upon the engine. He proceeded to help them as directed, and, after they had been working for a time, appellant was directed by the engineer to hold in place a drill, which was being used to drill a hole in a shaft upon the engine. In performing this duty appellant was required to take a position very near the throttle lever of the engine. While in this position, and while the engineer was turning the drill, appellant accidentally came in contract with the throttle lever, causing the throttle to open and admit steam into the engine. This started the engine, and, before it could be stopped, appellant's foot was caught in the machinery and injured. There was a globe valve in the steam pipe leading from the boiler to the engine, for the purpose of shutting off the steam from the engine. Two experienced engineers testified, in substance, that...