Olmstead v. Hastings Shingle Mfg. Co.

• Decision Date: 12 March 1908
• Parties: OLMSTEAD v. HASTINGS SHINGLE MFG. CO.
• Court: Washington Supreme Court

94 P. 474

48 Wash. 657

OLMSTEAD v. HASTINGS SHINGLE MFG. CO.

Supreme Court of Washington

March 12, 1908

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

Action by Mabel Olmstead, in her own behalf and as guardian ad litem of her minor children, against the Hastings Shingle Manufacturing Company. From a judgment for plaintiff defendant appeals. Reversed.

Newman & Howard, for appellant.

Findley & Welch, H. M. White, and R. W. Greene, for respondent.

MOUNT J.

This action was brought by respondent, Mabel Olmstead, in her own behalf and as guardian of her two minor children, to recover damages on account of the death of her husband, H. M Olmstead, alleged to have been caused by negligence of the appellant. The defense was a denial of negligence, an allegation of assumption of risk, contributory negligence of the deceased, and settlement between appellant and respondent. On these issues the cause was tried to the court and a jury, resulting in a verdict and judgment for the respondent in the sum of $10,000. The defendant appeals and assigns numerous errors, one of which is that the trial court upon the undisputed facts should have directed the jury to return a verdict in favor of defendant.

The facts, so far as they relate to the injury and the negligence of the appellant, are substantially these: For 12 days prior to the 19th day of February, 1903, the deceased, H. M Olmstead, had been employed as a sawyer in the shingle mill of appellant at Wahl Station in Whatcom county. For about one year previous to that time the deceased had been employed about the mill in different capacities, part of the time as engineer and fireman, part of the time as packer, and filing and hammering saws, and part of the time as extra man at the saws. He had been employed for 156 days out of nearly a year prior to the accident hereinafter mentioned. During the 12 days he was employed as a regular sawyer at one of the shingle machines as above stated his work was at night. The place was lighted by an electric lamp which hung immediately above his head. The shingle machine at which deceased worked was known as a 'Letson & Burpee upright shingle' machine. It was of standard make, with one exception which will be stated hereafter. It consisted of two circular saws, about 30 inches in diameter, one of which was at the left of the operator and cut the shingles automatically from a block, and dropped them on to a table. This saw was known as the 'shingle' saw. The other saw was immediately in front of the operator, and known as the 'jointer' saw. This jointer saw was stationary in a table about 30 inches in height, and extended through a slot in the top of the table about five or six inches above the plane of the table. A spring board was attached to the table at the left near the shingle saw, and extended in front over the jointer saw between the operator and the saw. In jointing shingles the operator would place a shingle on top of this spring board over the saw, and then press the board down, carrying the shingle on to the saw which trimmed off the edges of the shingle, and otherwise made the finished product. A shaft or arbor of the shingle saw extended across the top of this table, and lengthwise of it about eight inches behind the jointer saw, and parallel with it. The top of the jointer saw was three feet above the floor, and a little higher than the arbor or shaft of the shingle saw. A shingle chute was in front of the operator, over the jointer table, above the arbor of the shingle saw. Shingles, after being jointed, were tossed by the operator into this chute directly in front of him, good shingles to the left, and culls to the right. These shingles slid down the chute to the floor below. On the arbor of the shingle saw and to the right of the operator a pulley was attached around the arbor of the shingle saw. This pulley was not made by the manufacturers of the machine, but was constructed by the appellant of old belting, one-half inch in thickness and about eight inches wide, wrapped twice around the arbor and laced with lacing; and also at the edge toward the saw a clamp of iron, about one inch wide and one-fourth of an inch thick, was placed over this belting. The ends of the clamp were bent at right angles to the arbor, and a small bolt placed through the ends, so as to clamp the belt pulley tightly to the arbor, and prevent the pulley from slipping on the arbor. The ends of this clamp projected at right angles to the arbor about an inch or an inch and a half. The end of the small bolt also projected from the jaws of the clamp. A belt ran over this pulley between the clamp and the box at the end of the arbor, and covered all the space between the clamp and the box. This clamp and pulley belt were just below the floor of the shingle chute above mentioned, and barely cleared it as the arbor revolved. This pulley was not a part of the machine as manufactured; and was placed there for the purpose of causing the shingle saw feed to run more rapidly. Shingles and culls frequently accumulated or 'swamped up' on the chute leading to the lower floor of the mill, and the customary way to free the chute of this 'swamp' was for the operator to push the accumulation down with a shingle held in his right hand. In pushing an accumulation of the culls the hand of the operator would come near the revolving clamp. He would not have his hand near this clamp for any other purpose.

As stated, the deceased had operated this machine regularly for 12 days on a night shift. It was his duty to keep the machine in order by oiling it...