Olson v. Seldovia Salmon Co.

• Decision Date: 19 November 1915
• Docket Number: 12216.
• Parties: OLSON v. SELDOVIA SALMON CO.
• Court: Washington Supreme Court

152 P. 1033

88 Wash. 225

OLSON v. SELDOVIA SALMON CO.

No. 12216.

Supreme Court of Washington, En Banc.

November 19, 1915

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by Louis Olson against the Seldovia Salmon Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Vanderveer & Cummings, of Seattle, for appellant.

Arctander & Jacobsen, of Seattle, for respondent.

PARKER J.

The plaintiff commenced this action in the superior court for King county seeking recovery of damages, which he claims resulted to him from the negligence of the defendant in maintaining dangerously defective machinery, near which he was directed by the defendant's foreman to work while in the employ of the defendant. Trial before the court and a jury resulted in verdict and judgment in favor of the plaintiff in the sum of $2,500, from which the defendant has appealed.

The question here presented, which we regard as of most importance, arises upon the claim made by counsel for appellant that the trial court erred in denying their challenge to the sufficiency of the evidence to warrant the submission of the cause to the jury made at the close of the evidence introduced on respondent's behalf. No further challenge was made to the sufficiency of the evidence with the view of having the cause determined in appellant's favor as a matter of law. We therefore summarize the facts as they appear from the exhibits and the testimony of the respondent and his witnesses at the conclusion of the evidence introduced in his behalf. Manifestly, whatever evidence was thereafter introduced by appellant tending to contradict the testimony of respondent and his witnesses, is foreign to the question of the correctness of this ruling of the trial court.

Appellant is a corporation existing under the laws of this state, with its principal place of business at Seattle. It is engaged in the salmon fishing and canning business, maintaining a plant at Seldovia, Alaska. It was at this plant that respondent was injured by having his clothing caught on a projecting key upon a revolving shaft while performing his work in obedience to the directions of appellant's foreman. Appellant's cannery building at Seldovia rests upon piling over the water, the floor of the building being on a level with the adjoining wharf. Near the southwest corner of the building there is an elevating carrier to convey fish from vessels or scows up into the building. This carrier passes through the wharf just outside the west wall of the building and into the building through its west wall, projecting into the building a distance of 4 or 5 feet. It is about 4 feet north of and parallel with the south wall of the building. It consists of endless chains with crosspieces of wood attached thereto running up over the floor of the carrier. The fish are carried up by these crosspieces and dropped over the upper end of the carrier into a chute. The exact pitch and height of the carrier above the floor does not clearly appear, but in any event its position is such that a man can stand by it on its south side and reach the fish as they are ascending. It becomes necessary for a man to relieve the clogged condition of the carrier which occasionally occurs; and when doing this, one is required to go to the carrier on the south side, that is, between the south side of the carrier and the south wall of the building, which, as we have noticed, are about four feet apart. A shaft which communicates power to the carrier runs parallel with the west wall of the building about 4 feet therefrom and about 3 feet above the floor. It runs through bearings attached to 6 by 6-inch posts on each side of the carrier, which support the carrier. This shaft projects about 18 inches beyond the south post and a pulley which is very close to the south post, without any protection whatever, to within about 20 inches of the south wall of the building. So there is a space about 4 feet square practically inclosed by this shaft, the carrier, and the west and south walls of the building, in which space a man is required to go occasionally to attend to the carrier. One going in there for this purpose is required to pass between the end of the projecting shaft and the south wall of the building. The pulley close to the south post on the projecting shaft is secured to the shaft by a key. This key projects from the pulley along the shaft in a channel to within two inches of the end of the shaft. On the extreme outer end of the key is a shoulder projecting out at right angles to the shaft a distance of about one inch. The speed of the shaft when revolving is comparatively slow; however it is such that the key and its projecting shoulder are not readily noticeable when the shaft is revolving. The key is noticeable only by very close inspection when the shaft is revolving; the shaft then having the general appearance of being smooth and free from projections.

For about three weeks prior to the day respondent was injured he was employed by appellant as night watchman at the plant. He had no other duties about this particular building, though it was his duty in addition to that of watchman to keep up the fires in the boiler during the night. As to additional duty imposed upon him, and instructions given him relative thereto by the foreman on the evening of the day before he was injured, respondent testified as follows:

'Q. Now was there any change made; was any additional work put onto you after you had started as night watchman and up to the time you were hurt? A. Well, the night previous to the night I was hurt---- Q. On the 15th of June in the evening you were hurt? A. Yes, sir. Q. Now the evening before that, what happened then? A. Mr. Whorf (the foreman) told me as I was standing--I can't quite remember if I was cleaning out the boiler or throwing in coal, he told me absolutely to go over there when they were taking up fish to look after the fish. Q. Do what? A. Look after the fish; see that the fish was not going into the gear and breaking it, or some of it going back into the water. Q. He told you to do that that night? A. Yes, sir. Q. That was the night before you were hurt? A. Yes, sir. Q. Now, at that time had the fish come up? A. They were through with the fish--taking up fish when he came in through the cannery. Q. When he told you this? A. Yes, I was in the boiler room. Q. Prior to that time when you were there as watchman has the fish come in after your work begun? A. No. Q. That was the first night that they had come in? A. Yes, sir. Q. While you were there? A. Yes, sir. Q. Prior to the time when fish came up the night that you were hurt, had you been over in that corner of the cannery at all? A. No, I had nothing there to do. Q. Had you had any opportunity to look at the machines there before that? A. No, sir.'

As to what he did and what happened when he was hurt the next evening, he testified as follows:

'Q. What time about was it when the fish commenced to run--commenced to be taken in? A. Well, I don't know, around 5 o'clock, I guess. Q. When did you get around there? A. Well, I was there a little after 5. Q. At a little after 5 you went over there; did you see anything about the fish falling down? A. Well, yes, I did. Q. How long had they been working lifting up the fish before you saw them falling down? A. Oh, I couldn't say quite. It might have been a half an hour or three quarters of an hour. Q. As soon as you saw the fish falling down what did you do? A. Well, I went in between the revolving shaft and the wall to get in there to pick the fish out from the gear. * * * Q. Well, you can come down here and stand on the side there and show the jury just how you came in; now, you came in what way? A. Well, I came in this way down in here (indicating); opposite the wheel and opposite the shaft there, and was in here and picked out the fish (indicating); as I couldn't stay away from the boiler very long, I didn't see no more fish in here and I went out as carefully as I could by the shaft here, going back to the boiler. Q. You went out back to the boiler? A. That is when my coat caught. Q. Now, at that time when you went in between the shaft, did you notice how much of a space there was? A. Well, I know that I took my clothes--coat together like this (indicating)--and went in quite carefully, so I knew it was a pretty narrow space in between. * * * Q. After you had taken the fish out there that was there, you went back again the same way? A. Yes, sir; I did. Q. When you went back between the shaft and the wall, just state how you walked when you walked. A. Well, I walked the same way as I did when I came in, about the same way, but some way or another the corner of the coat caught on the revolving shaft and the elbow of the key. I tried to pull the coat off but the coat was too strong and I couldn't tear it. But I know it almost I was took around the shaft several times. Of course I hollered, and I attracted Mr. Starklauf's attention. He was outside. I can't recollect. I was quite dazed.'

While other testimony of respondent shows that he appreciated that there was danger attending the revolving shaft to one coming in contact therewith, it is plain that he did not then know of the existence of the key on the shaft nor appreciate the greater danger attending the presence of the key there. We deem it unnecessary to notice respondent's testimony in detail in this respect.

It is contended by counsel for appellant that respondent should be held to have assumed the risk of being injured by the revolving shaft and the key thereon, as a matter of law, in view of his knowledge and his appreciation of the dangers attending a revolving shaft, as disclosed by the evidence introduced in his behalf. We...