Prior v. Eggert

• Decision Date: 04 August 1905
• Citation: 39 Wash. 481,81 P. 929
• Parties: PRIOR v. EGGERT.
• Court: Washington Supreme Court

81 P. 929

39 Wash. 481

PRIOR v. EGGERT.

Supreme Court of Washington

August 4, 1905

Appeal from Superior Court, Snohomish County; John C. Denney, Judge.

Action by Charles J. Prior against E. Eggert. Judgment for plaintiff. Defendant appeals. Affirmed.

Corley & Horan, for appellant.

Robt. A. Hulbert, for respondent.

ROOT J.

Respondent a man 27 years old, was employed by appellant in the operation of a trim saw in the latter's shingle mill when his right thumb was cut off at the first joint. He had been using said saw about five weeks prior to the accident and had worked but little about machinery theretofore. It was shown by the evidence that for some time before the day of the accident the saw that respondent was operating would at times 'wobble' and run improperly. On the day of the injury the saw was acting so badly that respondent complained thereof to the filer, who was charged with the duty of keeping the saw in proper condition, and the mill was stopped, and the saw taken out, examined, and filed by said filer. Respondent was not present while this was being done. The saw having been filed and replaced, and the mill started, respondent resumed his work, and was injured about two hours thereafter. He testified that he supposed the saw had been repaired so as to run safely, and did not discover anything different until the accident occurred. He describes the occurrence in the following language: 'Oh, we worked for perhaps two hours, or something like that, afterwards, and I had a block to be cut off, and all at once the saw wobbled and turned the block around, and drew my hand right into the saw.' This evidence was not disputed, although there was some evidence to show it unlikely that the accident so happened, and some tending to prove statements of respondent somewhat inconsistent with this version. Respondent recovered judgment in the sum of $830. A motion for a new trial was interposed and denied. From the judgment this appeal is taken.

It is urged by appellant that no negligence is established against him. Respondent and two or three of his witnesses testified to facts showing that the saw had, long prior to the accident, been warped, 'buckled,' and otherwise injured, and had been at times dangerous to use. Respondent's testimony, together with that of his witnesses, as to the defective condition and dangerous action of the saw, was sufficient, if believed by the jury, to sustain a charge of negligence against appellant.

In his charge to the jury the trial judge used the following expression, to wit: 'The burden of proving contributory negligence is on the defendant, and it must be proved by defendant by a preponderance of the evidence.' Appellant contends that the words 'by defendant' render the instruction misleading, and that the jury may have gathered the idea therefrom that this defense must be established by the evidence of defendant's witnesses only. We do not think this contention can be upheld. The trial judge did not say that the defense must be sustained by the evidence of defendant, or of his witnesses, but that it must be 'proved by the preponderance of 'the' evidence.' This would clearly indicate a preponderance of 'all' the evidence.

In the charge as to damages, the court, among others, gave the following instruction: 'The elements entering into this damage, if he has sustained any, are as follows: (1) For all of his time during the period he was disabled by the injury.' It is in evidence that respondent was incapacitated for work during a period of six weeks, but there is no evidence as to the value of his time, or as to what he might have earned during said period, other than what might be inferred from the character of the work and respondent's age,...