Miller v. Union Mill Co.

• Decision Date: 02 January 1907
• Citation: 88 P. 130,45 Wash. 199
• Parties: MILLER v. UNION MILL CO.
• Court: Washington Supreme Court

88 P. 130

45 Wash. 199

MILLER v. UNION MILL CO.

Supreme Court of Washington

January 2, 1907

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by Tony Miller against the Union Mill Company. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.

Govnor Teats, for appellant.

J. B. Bridges, for respondent.

CROW, J.

This action was commenced by the plaintiff, Tony Miller, against the defendant, the Union Mill Company, a corporation, to recover damages for personal injuries. Upon trial the jury returned a verdict for the defendant, and from a final judgment entered thereon this appeal has been taken.

It appears from the evidence that appellant was employed as a slasherman in respondent's mill, in which was an elevated platform provided with live rolls for conveying slabs, cants and lumber to where the appellant was working. The live rolls were operated by a shafting and system of unguarded cogs. At the upper side of an inclined floor or deck were a number of slasher saws, about four feet apart. The lower surface of the deck extended to the platform on which the live rolls were operated, being some two feet below the same. Certain skids extended from the platform and live rolls to the deck, and on the deck, extending from the skids to the saws, was a system of endless chains. Slabs or cants were sent down the live rolls to a point opposite the saws. The rolls then became dead, and it was the appellant's duty to pull or push the slabs from the rolls down the skids to the chains, and keep them straight, so that the chains might carry them up and across the deck to the slasher saws. In doing this, the appellant was furnished and used a picaroon with which to push or pull the slabs. Appellant being on the deck with his back towards the saws, a slab was sent down, and the rolls were then stopped, becoming dead. He struck his picaroon into the slab to pull it from the rolls down the skids, and to the chains. The picaroon, being dull slipped and caused the appellant to lose his balance. To prevent himself from falling onto the saws, he involuntarily threw himself forward, but just as he did so the rolls were put in motion by another employé, and his left hand, coming in contact with the cogs, was severely injured. The appellant alleged that the respondent was negligent (1) in providing him with a dull picaroon unfit for use; (2) in failing to furnish him a safe place to work by not guarding the cogs which could have been advantageously guarded. Respondent pleaded contributory negligence and assumption of risk. The accident occurred on May 17, 1905, while the factory act (chapter 37, Sess. Laws 1903, p. 40) was still in effect, but the trial took place after it had been repealed by the factory act (chapter 84, Sess. Laws 1905, p. 164). The court submitted to the jury the issues arising under appellant's charge of negligence relative to the picaroon, also the issue of contributory negligence. The appellant, however, having testified that he knew of the condition of the exposed and unguarded cogs, the trial court held that he had, as a matter of law, assumed the risk of any injury he might have sustained by reason of the failure of the respondent to guard the cogs as required by law, and refused to admit evidence tending to show that they could have been advantageously guarded. The court also refused appellant's request for an instruction to the jury that the respondent, by reason of its failure to safeguard the cogs, in compliance with the requirements of the factory act of 1903, had been deprived of its right to plead or rely upon the defense of assumption of risk.

The vital question before us is whether the rights and remedies of the parties are to be determined by (1) the rules of the common law; (2) the factory act of 1903; or (3) the factory act of 1905. In no event can the act of 1905, or any of its provisions, be applicable to this action, or define the rights of the parties; the employment of appellant and the accident having both occurred while the act of 1903 was in effect. The repealing act did not become operative until June, 1905, having been passed without an emergency clause. It contains no provision indicating any intention on the part of the Legislature to make it retroactive. 'It may be laid down as a fundamental rule for the construction of statutes that they will be considered to have a prospective operation only, unless a legislative intent to the contrary is expressed or necessarily to be implied from the language used or the particular circumstances, especially where to construe the act as retrospective in its operation would render it obnoxious to some constitutional provision, though the fact that the retrospective operation would not be unconstitutional does not require that the act be construed as retrospective. * * * The time of taking effect, and not the time of enactment, is the time to be taken into consideration in determining whether a statute is prospective or retrospective.' 26 Am. & Eng. Enc. Law (2d Ed.) 693. The notice required by section 9 of the factory act of 1905 has no application to appellant's right to commence this action, nor could the appellant be required to serve such notice before its commencement or as a condition precedent thereto.

There is no contention that any attempt had been made to safeguard the cogs, and, although it was the common-law duty of a master to furnish his servant a reasonably safe place to work, still the appellant, having known their unguarded condition, would at common law have assumed the risk of any danger or injury resulting from such exposed cogs. In Hall v. West & Slade Mill Co., 39 Wash. 447, 81 P. 915, this court held that the defense of assumption of risk was not available to a master when his servant was injured by reason of his failure to safeguard machinery in compliance with the act of 1903.

The respondent, however, in effect contends that, by reason of the repeal of said act, its defense of assumption of risk has been restored; its theory being that, as the act afforded the appellant a remedy which he did not have at common law, the remedy so given was removed when the statute was repealed by a subsequent act containing no saving clause. In support of this theory respondent's counsel has prepared an able and exhaustive brief, presenting his contentions in a very forcible manner. We think, however, that he falls into error by assuming that the act of 1903 afforded the appellant a 'remedy' of which he has since been deprived. That act was a penal statute. This court, in Hall v. West & Slade Mill Co., supra, when holding the master to have been deprived of the defense of assumption of risk, adopted the doctrine and reasoning of Green v. Western American Co., 30 Wash. 87, 70 P. 310, and the leading case of Narramore v. Cleveland, etc., R. Co., 96 F. 298, 37 C. C. A. 499, 48 L. R. A. 68. An examination of the Narramore Case, upon which the Green Case also rests, shows that Mr. Justice Taft held that the intention of the act then under consideration was to protect employés from injury from a very frequent source of danger; that it was passed in pursuance of the police power of the state, and expressly provided for the criminal prosecution of delinquent companies as one mode of its enforcement. He assumed that the act did not exclude the operation of another and more efficacious method of compelling compliance with its terms, namely, the right of civil action against the delinquent company by its employé whom the statute sought to protect. In substance, he contended that a servant could not, either expressly or impliedly, enter into any contract with his master stipulating that, although violating the penal statute, the master should not be deprived of the defense of assumption of risk. In the course of his opinion Mr. Justice Taft says: 'If, then, the doctrine of the assumption of risk rests really upon contract, the only question remaining is whether the courts will enforce or recognize as against a servant an agreement, express or implied on his part, to waive the performance of a statutory duty of the master imposed for the protection of the servant, and in the interest of the public, and enforceable by criminal prosecution. We do not think they will. To do so would be...