Metzler v. McKenzie

• Decision Date: 01 April 1904
• Citation: 76 P. 114,34 Wash. 470
• Parties: METZLER v. McKENZIE.
• Court: Washington Supreme Court

76 P. 114

34 Wash. 470

METZLER v. McKENZIE.

Supreme Court of Washington

April 1, 1904

Appeal from Superior Court, Snohomish County; John C. Denney, Judge.

Action by Joseph Metzler against George McKenzie. From a judgment of nonsuit, plaintiff appeals. Affirmed.

John Tobin and Brownell & Coleman, for appellant.

Willshire & Kenaga, for respondent.

PER CURIAM.

Action brought by Joseph Metzler, plaintiff, against George McKenzie, defendant, in the superior court of Snohomish county, to recover compensation for personal injuries. Plaintiff was nonsuited at the trial, and appeals.

The only assignment of error is the granting of the nonsuit by the trial court. Appellant received the injuries of which he complained on or about the 20th day of September, 1901, while he was employed by the respondent as a carpenter in the construction of a brick building in the city of Everett. Benjamin Thomas was the foreman of the carpenter work on this structure. Thomas employed appellant, and had the authority to employ and discharge men in that line of work. This building had progressed at the time of the accident to the laying of the joists just beneath the roof at the top of the third story. To hold these joists in position a piece of wood called 'bridging' is nailed thereto, extending from the top of one joist to the bottom of the next. In order to nail on the bottom part of this bridging, it was necessary to build a scaffold on which the carpenters could stand while at work. This bridging is sawed at a proper angle at each end, in order that it may be nailed against the joists. The sawing was done in what is called a 'mitre box,' which is a rough three-sided box, without top or ends, into the two upright sides of which slits are sawed at the proper angle. The piece of bridging is laid in the box, and the workman saws it through these slits to give it the proper angle. The continuous sawing of bridging has the effect of making a saw cut into the bottom of the box. It appeared from the testimony produced in appellant's behalf that on the afternoon of the day of the accident appellant and G. C Kiehl, a fellow carpenter, were at work on the top of the roof joists of the building in question, when Foreman Thomas came up where the carpenters were at work and gave them directions for their further work. Mr. Kiehl testified on this branch of the case as follows: 'Q. What did he tell you? A. Well, we was getting near the end of that work, and he says for a couple of us to go down and build a staging and finish nailing the bridging, and the rest could go down on the other floor; and I said, 'Will I go down and build the staging?' and he says, 'Yes' so I started down and went to building the staging. Q. Who went with you? A. Nobody. Q. Who helped you in building that staging? A. Well, Van Bergen was piling up some planks, and pulling them up from below, and he handed up some planks to me. Q. He handed you the material, did he? A. Yes, sir. Q. Did you do the entire construction work youself? A. I did. Q. Explain to the jury just how you built the staging? A. Well the staging was built along in the front part of the room. * * * There is a partition running over here, the joists running up and down, and I nailed the plank on the joists and let the other end go over on a part of the window like that, and after I had that done I took some planks and laid them across the braces for us to walk on to nail the bridging in the joists overhead.' Witness further said that those planks were about eight feet from the floor, that the ceiling at that place was fourteen feet high, and could be reached easily from the planks. Foreman Thomas was on the third floor when Kiehl commenced to build this scaffold, but gave no directions as to details. The material used in its construction was taken by Van Bergen from a pile of lumber and handed to Kiehl as he needed it. In this pile there was a plank which had once been used for the bottom of a mitre box, and was sawed nearly halfway in two. As this plank was laid in the pile, the saw cut was down, and Van Bergen, without noticing the cut, raised and handed the plank to Kiehl, who laid it on the crosspieces with the cut on the under side. Kiehl and Van Bergen knew nothing of this cut before the time of the accident. Both were inspecting planks for knots, but not for saw cuts, and found the plank with the cut particularly free from knots. In appearance the plank was new, like the rest of the lumber that had come from the mill with the general bill of lumber used in the building. There were other sound planks in the pile which could have been used in its place. Appellant in his brief admits that 'Kiehl and Van Bergen were competent men in their respective positions.'

Appellant Metzler testified that it is customary for carpenters to put up temporary staging while engaged at work on buildings. The testimony also showed that Thomas was a competent foreman; that he was not present when the planks were handed up; that Metzler, having finished the job on the roof, went to Foreman Thomas, who was then on the floor of the third story, for orders. Thomas told him to go and help Kiehl nail the bridging. Metzler went upon the roof, procured his hammer, walked over the roof joists to a place just above the scaffold, and swung himself down to the floor of the scaffold at the west end. Metzler started nailing from the west, moving as he worked towards the east end of the building. Kiehl was working from the opposite direction towards Metzler. It so happened that these parties met on this plank with the saw cut on its underside. At the time of the accident Metzler was reaching up in the act of driving a nail. When Kiehl moved towards him, the plank broke suddenly at the place of the cut, throwing both men to the floor. Kiehl escaped unhurt, but appellant's wrist was broken, and he sustained other injuries. It is not pretended that respondent or his foreman, Thomas, had any knowledge as to the saw cut in this plank. Appellant at the time of this accident had been working on the building in question over one month. He swore that he did not know of the cut in this plank when he stepped onto this scaffold. This court had by repeated decisions affirmed these legal propositions: (1) That it is a positive duty which the master owes to his employé to furnish such employé with reasonably suitable and safe machinery, means, and appliances for doing the work which the servant is employed to do, and to provide him a reasonably safe place in which to work; that this duty being one which the master is positively bound to perform in the first instance, he cannot be excused from its performance by intrusting it to another charged with the duty to make performance for him, but who neglects to discharge that duty. (2) If the master furnishes his employé with adequate machinery, means, and appliances, and a safe place for the performance of his work, exercise reasonable care in keeping them in order and proper repair, and provides competent fellow servants, then the master is not responsible to one servant for the negligence of another servant in the management and use of the machinery and appliances furnished for performing his work. (3) If, then, one servant shall be injured through the negligence of a fellow servant while at work in the line of his employment, this is considered a risk incident to the employment, and the master is not liable. Many illustrations of the application of these principles of law are furnished by the decisions. The following are some of the decisions by this court bearing on these propositions of law, which may be cited in this connection; McDonough v. Great Northern Ry. Co., 15 Wash. 244, 46 P. 334; Johnson v. Bellingham Bay Imp. Co., 13 Wash. 455, 43 P. 370; Allend v. Spokane Falls & N. Ry. Co., 21 Wash. 324, 58 P. 244; Shannon v. Consolidated, etc., Mining Co., 24 Wash. 119, 64 P. 169; Hammarberg v. St. Paul, etc., Lumber Co., 19 Wash. 537, 53 P. 727; Towle v. Stimson Mill Company (Wash.) 74 P. 471.

The question for the consideration of this court is, how do these principles of law affect the main issue raised upon this record? The counsel for appellant contend that the case at bar falls within the reason of the rule announced in Johnson v. Bellingham Bay Imp....