Lindblom v. Hazel Mill Co.

• Citation: 157 P. 998,91 Wash. 333
• Decision Date: 01 June 1916
• Docket Number: 12764.
• Court: United States State Supreme Court of Washington
• Parties: LINDBLOM v. HAZEL MILL CO.

157 P. 998

91 Wash. 333

LINDBLOM v. HAZEL MILL CO.

No. 12764.

Supreme Court of Washington

June 1, 1916

Department 1. Appeal from Superior Court, Whatcom County; Ed. E. Hardin Judge.

Action by Paul Lindblom, by his guardian ad litem, Charles Lindblom against the Hazel Mill Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

Hadley Hadley & Abbott, of Bellingham, for appellant.

Kellogg & Thompson, of Bellingham, for respondent.

ELLIS J.

Action for personal injuries. Plaintiff, a youth of 19, came to this country from Finland in July, 1913. In the latter part of that month he started to work for defendant. For a time he worked on the slab saw, and for seven days prior to the accident he worked as off-bearer behind the edger. The edger machine contained four or five rapidly revolving saws, and was used to cut large timbers, called cants, into narrower pieces and rip off the slabs. The timber was fed through a series of rolls in the edger machine, the lower of which were live rolls and forced the timber through the saws, and finally out at the rear of the edger onto a platform of dead rolls. It was the duty of the off-bearer to throw the slabs from the timber as it lay on the dead rolls, and then by means of a trip or lever cause a series of small rollers revolving at right angles to the platform to lift on a slant and cause the timber to move sideways onto a set of live rolls by which it was carried away. There was an opening in the floor covering the whole space underneath the edger machine through which the sawdust and splinters dropped into a conveyor below. The edger in question was 52 inches wide in the clear between the sides of the frame inclosing the saws. The frame was closed except at the back, where there was an opening towards the dead rolls between the top of the cast iron base of the edger, which rested upon the floor, up to the live rolls in the edger. The iron base of the edger was about 10 inches high. This opening was about 14 inches wide, and extended the whole width of the edger between the sides of the frame. The saws were about 9 inches from this opening. There was a space between the dead rolls and the edger itself sufficiently wide to allow one to pass through. The evidence shows that even an experienced off-bearer would occasionally find it necessary to get into this space and push the heavy cants forward onto the dead rolls before removing the slabs and tripping the timber to the off-bearing rolls. On August 23, 1913, a cant 6 inches thick and estimated by different witnesses at between 2 and 3 feet wide and between 24 and 30 feet long, which had passed through the edger and had been cut into 6X6 inch sections, failed to clear this space by 6 or 8 inches. Plaintiff went into the space, and in attempting to shove the timber forward placed his feet on the base of the edger frame below the opening. While so braced and pushing, his left foot slipped into the opening, coming in contact with the saws, which cut into the heel and the tibia, and partially severed the great toe. At the time of the injury defendant was in default in the payment of an assessment which had been made and demanded by the commission under the provisions of the Workmen's Compensation Act. Plaintiff elected to sue for damages under section 8 of that act. When all the evidence was in defendant moved for a directed verdict, which was denied. The jury returned a verdict for $1,625. A motion for a new trial was overruled. From the judgment on the verdict, defendant appeals.

The appellant's contentions, though presented under many subdivisions, may be compendiously covered as follows: (1) That the respondent failed to exercise ordinary care; (2) that he failed to show that it was practicable to guard the opening in the edger, having due regard to its ordinary use and the danger to employés therefrom as required by the factory act; (3) that appellant furnished a safe way to perform the work, and respondent voluntarily chose a dangerous way; (4) that the court erred in giving a certain instruction; (5) that the Workmen's Compensation Act is unconstitutional.

There is evidence that the safe performance of the work in which respondent was engaged was not so simple as a mere observation might lead one to believe. One witness, an experienced off-bearer, testified, in substance, that heavy cants often stopped before clearing the space between the edger and the off-bearing rolls, that in such cases, when he was new at the work, he had often found it necessary to step into this space and push the cants clear of it before lifting the side rolls, but that by experience he learned how to avoid this and take advantage of the momentum of the cant as it left the edger by placing his hands upon it and keeping it moving so that it would clear the space without stopping. The respondent was a youth of 19 years, with only a few weeks of experience in any kind of millwork. He was not instructed as to this safer way of doing the work. He had received no instruction. He testified that he did the work as he had seen others do it. Whether in view of his inexperience and lack of knowledge of the safer way he was guilty of negligence in stepping into this space and bracing himself by placing his feet on the base of the edger frame in order to push this heavy cant was a question for the jury. Under no rule could he be held to the exercise of more than ordinary care for his own safety. Ordinary care in such a case would be that care which would be ordinarily exercised by a person of the same experience and knowledge under the same circumstances. Whether under all the circumstances he exercised ordinary care was a question for the jury. Erickson v. McNeeley & Co., 41 Wash. 509, 84 P. 3.

Nor does the fact that he knew that the unguarded saws were there and that if his foot slipped he would probably be injured charge him with contributroy negligence as a matter of law. He was not operating the edger. His mind was doubtless intent upon his own particular task. It was not incumbent upon him as a matter of law 'at all times to remember at his peril every unguarded device in the mill about which he was employed.' Rector v. Bryant Lumber & Shingle Mill Co., 41 Wash. 556, 84 P. 7.

There was a sharp conflict in the evidence as to whether it was practicable to effectively guard the opening in the edger having due regard to its ordinary use and the danger to employés therefrom. Several of appellant's witnesses, some of them experts, others not, gave it as their opinion that it would be impracticable to close this opening without great danger to other workmen; that without the opening splinters or large chunks would not have room to fly clear of the saws at the back, and would be carried around by the saw teeth and thrown out through the front rolls when opened for the reception of the next cant, thus endangering the edger man or others in the mill working back of him. The deputy state factory inspector testified that he inspected the mill in August, 1913, and then noticed the open back of the edger. His testimony implies that he then passed the mill as meeting the requirements of the factory act, but no certificate to that effect of that date appears in the record. He again inspected it in October, 1913, and ordered the board which had been placed in the opening immediately after the accident to be removed because he thought it dangerous to other employés. So far as the record shows, the only actual certificate of inspection he ever gave passing the mill as meeting the act was on July 13, 1914, about a year after the accident, at which time the back of the edger was open. At...