Ramm v. Hewitt-Lea Lumber Co.

• Court: Washington Supreme Court
• Writing for the Court: CROW, J.
• Citation: Ramm v. Hewitt-Lea Lumber Co., 49 Wash. 263, 94 P. 1081 (Wash. 1908)
• Decision Date: 11 April 1908
• Parties: RAMM v. HEWITT-LEA LUMBER CO.

94 P. 1081

49 Wash. 263

RAMM v. HEWITT-LEA LUMBER CO.

Supreme Court of Washington

April 11, 1908

Appeal from Superior Court, King County; R. S. Steiner, Judge.

Personal injury action by F. W. Ramm against the Hewitt-Lea Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Peters & Powell, for appellant.

Walter S. Fulton, for respondent.

CROW J.

Action by F. W. Ramm against the Hewitt-Lea Lumber Company, a corporation, to recover damages for personal injuries. From a judgment in favor of the plaintiff, the defendant has appealed.

The appellant owns a saw and shingle mill, in which the respondent, employed as a millwright, was injured. There is evidence that the appellant had installed a friction clutch pulley in its shingle mill, attached to a shaft, which in turn was attached to and supported by large upright timbers that the respondent was summoned to the shingle mill on the second floor, where the boxing on the shaft at the clutch pulley had become heated from want of oiling; that he first attempted to apply oil and tallow by reaching around the upright timbers; that the pulley by its rapid revolutions created a current of air, threw dust into his eyes, and interfered with his work; that he then passed to a position back of the upright timbers, where he approached the shaft and pulley from the opposite side, thus avoiding the current that the pulley was then revolving upon his right; and that some unguarged set screws upon its surface caught his clothing and drew him against it and the shaft, causing his injuries. The respondent testified that he had not theretofore done any work in the shingle mill located on the upper floor; that his usual employment was in the sawmill on the lower floor; that he was not aware of the existence of the projecting and unguarded set screws; and contends that the appellant was guilty of negligence in failing to guard them. There was other evidence tending to show that they were afterwards guarded. The appellant contends that the pulley and set screws, by their location in a remote and unfrequented portion of the mill, did not require guarding and that they could not be more advantageously guarded than by being in such a position.

By its first assignment the appellant insists that the trial court erred in refusing its motion for a nonsuit. There is evidence, although disputed, sufficient to show that the set screws were exposed, dangerous, and unguarded; that the respondent was ignorant of their existence; that they and the pulley could have been advantageously guarded without impairing their use; and that they were the cause of the accident. While there was also evidence sufficient to sustain the jury in finding the respondent guilty of contributory negligence, it was disputed, and not of such a character as to justify the trial court in holding him guilty of such negligence as a matter of law. The questions as to whether the pulley and set screws could have been advantageously guarded, whether appellant was negligent in failing to guard them, whether, being advantageously guarded by their position, the respondent assumed the risk, and whether he was guilty of contributory negligence, were all issues of fact, which were properly submitted to the jury.

The appellant contends that, in going back of the shaft and upright timbers, the respondent selected an unsafe position that the place occupied by him where he first attempted to do the oiling was safe; and that the trial court erred in refusing an instruction which appellant requested, in the following words: 'If you find that there were two or more methods in which the plaintiff could have performed the services in which he was engaged at the time he was injured, one a safe method and the other unsafe, I charge you that it was the duty of the plaintiff to have followed the safe method, and, if you should find that he did not do so, and the injury resulted therefrom, then the verdict must be for the defendant.' Not only was this request refused, but no other instruction was given upon the same subject. We are in considerable doubt as to whether there was evidence to warrant any instruction on the point involved; but, assuming the evidence was sufficient, the requested instruction being defective was properly...