Props v. Washington Pulley & Mfg. Co.

• Decision Date: 02 December 1910
• Citation: 111 P. 888,61 Wash. 8
• Court: Washington Supreme Court
• Parties: PROPS v. WASHINGTON PULLEY & MFG. CO.

111 P. 888

61 Wash. 8

PROPS v. WASHINGTON PULLEY & MFG. CO.

Supreme Court of Washington

December 2, 1910

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by William E. Props against the Washington Pulley &amp Manufacturing Company. From a judgment for plaintiff defendant appeals. Reversed, with directions to dismiss.

Graves & Murphy and M. M. Richardson, for appellant.

R. D Hill and Milo A. Root, for respondent.

GOSE J.

The plaintiff, 37 years of age, a boiler maker and a worker in structural iron and steel, was injured by a back fire or an explosion in the furnace of the boiler of the defendant's plant on October 14, 1909. The day preceding the injury he was engaged to take the place of the rgular night watchman at the defendant's mill for a short time. The defendant was operating a plant for the manufacture of window sash, doors, etc. The plaintiff's duties were to watch the mill, and to have steam sufficient to operate the plant at the opening hour each morning. He had had about six years' experience as a boilersmith in the American naval service. During this time he had charge of the boilers. While engaged in that service, he fired at different times when the regular fireman was ill, covering a period of about two weeks altogether. He had also fired about four months at another time, using coal as fuel in each instance. He had never used sawdust and shavings for fuel. On the night of the injury he was firing with sawdust and shavings taken from the mill. The defendant had provided slabwood to be used with the sawdust and shavings. The negligence charged is that the plaintiff had never used such fuel, that the defendant knew that explosions were liable to occur from its use, and that it failed to warn him of the danger. There was a verdict and judgment for the plaintiff. The defendant has appealed.

In addition to the facts stated, the respondent testified that he had never seen or heard of such an explosion, and that he had no knowledge that a stove would blow out. The respondent benked the fire, closed the furnace door, and a few minutes later there was an explosion in the fire box, and the door was thrown open and fire and shavings thrown upon him. He testified that he had not changed the dampers to the furnace, but that he left them as the engineer had placed them. The engineer who employed him knew that there had been back fires in the furnace, but did not instruct or warn him. The former explosions had been trivial, and had not injured any one. The respondent had lived for many years within a short distance of the appellant's plant, and had been a frequent visitor at the furnace room in both the daytime and the nighttime.

The appellant insists that the danger which caused the respondent's injury was not a hidden or latent one, but an obvious one springing from simple, natural, and universal laws, of which respondent was bound to take notice, that there was no duty upon the appellant to warn him of such laws, and that he assumed the risk incident to the employment. This view we think must be upheld. the rule as to the duty of the master to warn the servant is aptly stated in 1 Dresser's Employers' Liability, § 980, as follows: 'In the absence of anything to show the contrary, the master has a right to assume that the servant knows those facts of common experience with which ordinary persons of his age and experience are familiar--such matters as are within common observation, and are according to natural law. He has also the right to assume that his servant will exercise reasonable care under the circumstances to inform and protect himself.' See, also, 1 Labatt, Master & Servant, § 241; 26 Cyc. 1168; Wharton v. Tacoma Fir Door Co., 107 P. 1057.

The contention that upon the facts stated the respondent assumed the risk is supported by the following cases: Nordstrom v. Spokane, etc., R. Co., 55 Wash. 521, 104 P. 809, 25 L. R. A. (N. S.) 364; Roessler, etc., Co. v Peterson, 134 F. 789, 67 C. C. A. 295; Bollington v. Louisville, etc., R. Co., 125 Ky. 186, 100 S.W. 850, 8 L. R. A. (N. S.) 1045; San Antonio Gas Co. v. Robertson, 93 Tex. 503, 56 S.W. 323; Johanson v. Webster Mfg. Co., 139 Wis. 181, 120 N.W. 832; Fuller v. New York, etc., R. Co., 175 Mass. 424, 56 N.E. 574. In the Nordstrom Case the plaintiff, 26 years of age, was engaged in sawing steel lugs. While so occupied, some of the particles of steel released in the process of sawing got into his eye. He was under treatment for some time, when it became necessary for his eye to be removed. It appeared that, before he received the injury, steel filings had been blown into the eyes of some of his fellow workmen, resulting in inflammation, but not in the loss of an eye. In reaching the conclusion that the plaintiff assumed the risk, we said: 'It must be a matter of common knowledge to such a man that sawing iron lugs would create iron dust; that this iron dust would fly with the wind, or be thrown or forced by the movement of the saw; that flying dust would enter the eye if sufficiently near; that iron dust entering the eye might result in an injury the nature and extent of which, from the wellknown delicate structure of the eye, no man could foresee.' In the Roessler Case the plaintiff, a man 40 years of age and of varied experience, was injured by the explosion of lime while slacking it in the process of making whitewash. It was contended on the part of the plaintiff that it was the duty of the master to instruct him as to the dangers attending the work. In holding that the court should have given a peremptory instruction for the defendant, it was said: 'We cannot in the light of the evidence regard whitewashing, and the slacking of lime as incident thereto, as outside the scope of the general employment of such a laborer as the plaintiff...