Primley v. Elbe Lumber & Shingle Co.

• Decision Date: 29 June 1909
• Citation: 53 Wash. 687,102 P. 763
• Court: Washington Supreme Court
• Parties: PRIMLEY v. ELBE LUMBER & SHINGLE CO.

102 P. 763

53 Wash. 687

PRIMLEY v. ELBE LUMBER & SHINGLE CO.

Supreme Court of Washington

June 29, 1909

Department 1. Appeal from Superior Court, Pierce County; John A Shackleford, Judge.

Action by A. W. Primley against the Elbe Lumber & Shingle Company. From a judgment for plaintiff, defendant appeals. Reversed.

F. S Blattner, L. F. Chester, and L. B. Da Ponte, for appellant.

Govnor Teats, Hugo Metzler, and Leo Teats, for respondent.

MORRIS J.

The respondent was in the employ of the appellant as head sawyer and on the 23d of May, 1908, was injured. The negligence complained of was in the employment by appellant of one Coombs as a setter; it being alleged that respondent, knowing Coombs was incompetent and inexperienced as a setter objected to working with him but that he was induced to continue by reason of the promise of the appellant that, if Coombs proved incompetent, another setter would be procured, and that, relying upon this promise, respondent continued in his employment until his injury, some time in the afternoon or the same day.

The whole case hinges on whether the case falls within the rule contended for by respondent: That knowledge of the danger does not in case of injury preclude a recovery by the servant, where the master promises to remedy the defect or remove the danger, and the servant continues in the employment expressly relying upon this promise. The establishment of such a rule requires no citation of authority. It has become settled as one of the wholesome principles of the law. It is necessary, therefore, to examine so much of the record as touches this point to ascertain if the case before us is a proper one for the application of such rule. The respondent had gone to the mill office to look over the orders to be cut, and while there, as the testifies the following conversation with the foreman of appellant occurred: 'I said: 'We haven't any setter for that.' And he said: 'How about Coombs? He's a pretty apt fellow. We'll put him on.' I said: 'Did he ever work on the carriages?' Well, he did not know, but he would catch on pretty quick. I said: 'You better telephone for a setter. It will save time for the company and probably save lumber.' But he said: 'We will try Coombs anyway for a couple of days, and, if he don't make good, we will send for another man.'' The next conversation concerning Coombs was after the work had commenced. Respondent says that the foreman came there a little while before the accident, 'and I told him then that he better get another setter. He said: 'Oh, hell, give him a chance. He hasn't had any chance to learn anything yet.' And I said: 'It will be a long time before he will learn.' But he said: 'No; hell, we will try him out yet. He will catch on.'' On cross-examination he extends this conversation by adding: 'I said: 'If you are going to put us on that log, you better get a setter. There are a couple of other fellows that know about setting. Why not put them on? Dell Ackley is pretty good, and also that Billy Hoffman would do.' He said: 'We want Ackley to run the edger. He could do it, but he has enough to tend to.' And he wanted Billy on the log deck. He said: 'We have no use for Coombs at the edger, and we will put him on there.'' This is all the testimony disclosed by the record concerning the placing of Coombs as the setter. Respondent then relates how after working some time, seeing that Coombs did not understand the signals, he walked over and showed him the figure 3 upon the dial, which was the proper point for the set, in the size it was then desired to saw; but Coombs, notwithstanding this, set about a third of an inch past the figure, and the cant began to turn over, and while attempting with a peavey to 'pry it in,' as he says, it turned against him, causing the injury. If we should concede that the testimony was sufficient to justify a finding that respondent was in danger because of the inexperience or incompetency of Coombs, and that the peril of the situation was called to the attention of appellant, we can find in this evidence no promise on the part of the appellant to remove this danger or provide any remedy for this peril. The first assertion by the master as to Coombs was that: 'He's a pretty apt fellow. We will put him on. * * * He would catch on pretty quick.' There does not seem to be any inducement here held out to the respondent to work with an inexperienced man temporarily upon a promise to substitute in the near future, or at any other time, a man of knowledge, fitness, and experience. It would rather go to show that the appellant thought Coombs could do the work with reasonable satisfaction, and was to be kept on the job. The next statement by appellant is: 'We will try Coombs anyway, for a couple of days, and, if he don't make good, we will send for another man'--no concession of Coombs' ability or lack of it, but an expressed purpose to put him on the job in order to see 'if he don't make good'; no promise to procure anther man for the work,...