Neal v. Phoenix Lumber Co.

• Decision Date: 10 August 1911
• Citation: 64 Wash. 523,117 P. 267
• Parties: NEAL et al. v. PHOENIX LUMBER CO.
• Court: Washington Supreme Court

117 P. 267

64 Wash. 523

NEAL et al. v. PHOENIX LUMBER CO.

Supreme Court of Washington

August 10, 1911

Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge.

Action by Florence H. Neal and Marguerite M. Neal by her guardian Florence H. Neal, against the Phoenix Lumber Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Post, Avery & Higgins, for appellant.

Graves Kizer & Graves, for respondents.

GOSE J.

The plaintiffs are, respectively, the widow and minor daughter of Charles Neal, deceased. Charles Neal was drowned in the wheel pit at the defendant's mill while in its employ on April 2, 1910. It is charged that he lost his life in consequence of the negligence of the defendant. There was a verdict and judgment in favor of the plaintiffs for $13,500. The defendant has appealed.

Succinctly stated, the complaint alleges that the appellant corporation is engaged in the operation of a sawmill, the motive power being furnished by the waters of the Spokane river, conducted through a flume into a penstock, thence through another flume upon turbine wheels which through the power of the water operates the machinery of the mill; that the construction of the penstock was negligent, unscientific, and improper in its original design and its construction, in that it was not built so as to resist the force of the waters from without when the river was high and the penstock was empty; that it became the duty of the deceased in the discharge of his duties as a millwright to enter the wheel pit in order to repair the wheels; that to do so he closed the gates of the flume for the purpose of emptying the penstock and wheel pit; and that, while repairing the wheels, the penstock gave way in consequence of the pressure of the water of the river from without, immediately causing his death by drowning.

Before answering, the appellant moved the court to require the respondents to furnish a bill of particulars, showing in what respect the penstock was negligently or improperly or unscientifically constructed. The denial of this motion suggests the first error claimed.

The granting or refusing a bill of particulars rests in the sound discretion of the court, and its conclusion will not be disturbed except for abuse of discretion. Turner v. Great Northern Ry. Co., 15 Wash. 213, 46 P. 243, 55 Am. St. Rep. 883. The rule stated is peculiarly applicable where the suit is waged by the heirs or personal representatives of a deceased person. Donohue v. Meares, 65 Hun, 620, 19 N.Y.S. 585.

The ultimate fact alleged is that the penstock was so negligently constructed that, when it was emptied and the river was high, it would not and did not withstand the pressure of the water, and that the deceased while in the discharge of his duty came to his death in consequence of such defective construction. We think the appellant was sufficiently advised of the negligence relied upon for a recovery. It had owned and operated the plant for about 12 years. Its mill is situated upon and across the south channel of the Spokane river. It knew that the penstock was made of wooden material, formed by nailing heavy plank on the inside of large vertical timbers, and that there were no inside upright or cross timbers.

At the close of respondents' evidence the appellant moved for a nonsuit; and at the close of all of the evidence it moved for a judgment. The denial of these motions is the next error suggested. It is said that the evidence does not tend to show (1) that the appellant knew, or by the exercise of reasonable care could have known, of the fact that the penstock was not constructed to withstand the pressure of the water from without when the river was high and the penstock was empty; and (2) that it does not tend to show that the deceased did not know, or in the exercise of reasonable care could not have known, of the weakness of the penstock in that respect. These suggestions necessitate a brief statement of the facts disclosed by the record. The appellant acquired the mill by purchase in 1898, had it examined and somewhat remodeled, and thereafter operated it without accident, so far as the record discloses, until the happening of the accident involved in this suit. There is no evidence that any change was made or suggested in the flume or penstock. The Spokane river has its source in Lake Coeur d'Alene, which is fed by mountain streams, and is therefore subject to sudden rises. The south branch of the river upon which the mill is situated was somewhat higher on the last of March, 1910, than it had theretofore been known. The waters were receding on the 2d of April when the accident happened. The mill had then been shut down for about 10 days to await a subsidence of the waters and the repair of the wheel. The waters of the main channel of the river were some two feet higher in 1894 than in 1910. A short distance above the appellant's mill the river divides, forming what is termed the north and south channels. The presence of a wingdam in the main channel and the closing of a branch of the south channel, which formerly flowed into the north channel at a point above the appellant's mill, were facts known to the appellant before the accident, and caused the south channel to carry more than its proportion of the waters of the river. The appellant's manager knew that the deceased was intending to empty the penstock and wheel pit for the purpose of repairing the wheel. The flume is 27 feet in width at the intake, 15 1/2 feet at the penstock, and has a depth of 9 feet. The penstock extends 12 feet below the bottom of the flume, giving it a depth altogether of about 21 feet. The dimensions of the penstock are 15 1/2 by 7 1/2 feet. All the measurements stated are inside measurements. The framework of the penstock consists of timbers 14 by 14 and 12 by 12, placed 2 feet apart, outside measurement, and sustained by truss rods or braces. Planks were nailed to the inside of these timbers. The first 5 planks from the bottom where the greatest pressure was exerted were 4 by 12. The remainder were 3-inch plank. The cylindrical flume leading from the penstock to the wheel pit and the wheels is about 8 by 9 feet. The waters of the river were running over the top of the flume on the day of the accident. The evidence of the civil engineers shows conclusively that the penstock was not constructed so as to withstand the pressure of the water from without when the river is high and the penstock is empty, in that there were no inside upright timbers or crossbeams or braces. The deceased knew of the physical facts, except the force exerted by the pressure of the water and the resisting power of the penstock from the force without. He was not a constructor or hydraulic engineer. He commenced working in a mill as a common laborer when he was 16 years of age. He began working for appellant as a trimmer in 1898, and continued at that work for three years. He then worked for it as an edger man for four or five years, when he became its foreman and millwright, continuing in that capacity until his death. He had been foreman for about four or five years. It was his duty to see that the mill flume and penstock were kept in repair. But it was not his duty to have the plant inspected with a view to determining its structural sufficiency. From the facts stated it is obvious that the jury were warranted in finding that the appellant by the exercise of reasonable care could have ascertained the structural insufficiency of the penstock before the happening of the accident. This is made clear from the evidence of the civil engineers.

Nor does the fact that the south branch of the river was higher than it had theretofore been known relieve it as a matter of law. It knew, as we have said, that the south channel was carrying more than its proportion of the waters of the river, and it was a question for the jury whether, knowing that fact, it had exercised the care that reasonable prudence required considering the forces surrounding it.

It is true, as the appellant states, that it is not an insurer of the safety of the instrumentalities which it employs.

However, the jury, we think, were warranted in concluding that an exercise of reasonable care upon its part required it to anticipate that it might become necessary to empty the penstock when the river was at its flood for the purpose of repairing the wheels. That work could only be done when there was no water in the penstock or wheel pit. Indeed, it knew that fact at the time the deceased entered the wheel pit to repair the wheel preparatory to putting the mill into operation. It was for the jury to determine whether the exercise of reasonable care required the appellant to anticipate that high water, an empty penstock, and an employé in the wheel pit, might occur at the same time.

The death of the deceased cannot be attributed as a matter of law to accident, or to unusual or extraordinary causes which an employer exercising reasonable care considering the surrounding forces could not have anticipated. 'It is well settled that an employer is presumed to be familiar with the dangers, latent as well as patent, ordinarily accompanying the business in which he is engaged. * * *...