Rommen v. Empire Furniture Mfg. Co.

• Decision Date: 25 November 1911
• Citation: 118 P. 924,66 Wash. 48
• Court: Washington Supreme Court
• Parties: ROMMEN v. EMPIRE FURNITURE MFG. CO.

118 P. 924

66 Wash. 48

ROMMEN v. EMPIRE FURNITURE MFG. CO.

Supreme Court of Washington

November 25, 1911

Department 1. Appeal from Superior Court, King County; Wilson R. Gay Judge.

Action by John Rommen against the Empire Furniture Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

James E. Bradford and Henry S. Noon, for appellant.

J. P Wall and Milo A. Root, for respondent.

GOSE J.

This is a suit to recover damages for personal injuries. A judgment for the plaintiff is challenged by this appeal. The suit is brought under the factory act. The charges of negligence are two in number: (1) The failure of the appellant to install a belt shifter; and (2) its failure to guard its saw. The facts are these: The respondent, a cabinet maker by trade, had his right hand injured and the small finger cut off while operating a ripsaw upon a combination machine used for general cabinet work. There was no belt shifter or other device for shutting off the electric power, other than a switch some six or eight feet from the saw. The saw was not guarded. The saws, three in number, were susceptible of adjustment to an angle of 45 degrees. They were used interchaugeably for cross-cutting, ripping, beveling, and grooving. The table of the machine was about three feet square, and stationary. The saws revolved in a groove in the table. They varied in size from six to eight inches in diameter, and extended three or four inches above the surface of the table. At the time the respondent received the injury, he was ripping an oak board, six or seven feet in length, six inches in width, and three-fourths of an inch in thickness. The board was placed against the saw, and after it had been ripped some eight or ten inches, there was a pinch or squeeze which stopped the saw. The respondent then detached the board and placed the other end against the saw. When the board had been ripped about four or five feet, there was a second pinch which stopped the saw. The respondent then tried to loosen the board and start the saw, but was unable to do so. He then took a wedge six or seven inches in length which he had prepared for the purpose, reached over the saw with his right hand, and inserted it in the opening in the board about ten inches beyond the saw, for the purpose of releasing the pressure and starting the saw. When the pressure was released, the board was thrown backward, and the respondent's hand came in contact with the saw, causing the injury. When he reached over the saw to insert the wedge in the board, he had his left hand upon the end of the board next to him and his body against the board and the table of the machine. He testified that he was holding the board tightly, and did not expect it to be thrown backward, although he knew it had that tendency when the friction was taken off. Two of the appellant's witnesses testified that they would not have anticipated that a board would rebound upon the friction being removed, if the operator was firmly pressing it with his body. Eight other cabinet workers were at work on the same floor with the respondent, and each used the machine whenever his work required it.

Upon these facts appellant contends that the respondent was guilty of contributory negligence which bars a recovery. The argument is that the switch, some six or eight feet from the machine, afforded a safe way of doing the work; and that, when the saw pinched and could not be started, it was the plain duty of the respondent to step to the switch, throw off the power, and then release the pressure. It is said that he chose the unsafe way, and that, in reaching over the saw, he was guilty of negligence. In reference to the switch affording a safe way, there is evidence to the effect that it would have been dangerous to leave the board with the power on and stop the switch; and that, if the saw should have started with no one holding the board, the board would have been thrown with great force. There is further evidence that a man was killed in that manner in another mill. This clearly presented a question for the jury under a proper instruction, which the court gave. Nor can it be ruled as a matter of law that the respondent was guilty of negligence in reaching over the saw and inserting the wedge in the board. He was holding the board tightly with the other hand, and had the weight of his body against it and the table containing the saw. The saw was a small one, and extended only three or four inches above the surface of the table. The following cases are in point: Bush v. Independent Mill Co., 54 Wash. 212, 103 P. 45; Hale v. Crown, etc., Co., 56 Wash. 236, 105 P. 480; McKean v. Chappell, 56 Wash. 690, 106 P. 184; Berger v. Metropolitan, etc., Co., 61 Wash. 35, 111 P. 872. In the Bush Case it was held that the contributory negligence of the deceased was a question for the jury, where the deceased lost his life in stepping over a revolving shaft containing a projecting set screw, where the shaft and set screw extended 16 or 18 inches above the floor, and its presence was known to the deceased. The court said that, 'whilst injury might result therefrom, the act was not necessarily a negligent one.'

The appellant puts much stress upon Laidley v. Musser Lumber & Mfg. Co., 45 Wash. 239, 88 P. 124. A reading of that case will disclose that the facts are somewhat dissimilar. The court said in that case, speaking of the conduct of the plaintiff, that the act which caused the injury was one which 'would naturally and almost necessarily precipitate his arm against the saw.' No such statement could be made upon the facts in the instant case. Other cases are cited by the appellant which announce the rule that, where there are two ways of doing an act, the one fraught with danger and the other safe, there can be no recovery where the unsafe way is voluntarily pursued. Such cases are not controlling here. As was said in Beltz v. American Mill Co., 37 Wash. 399, 79 P. 981: 'Every case in which negligence or contributory negligence is charged depends so largely upon its own particular circumstances that the decisions in other cases are only important in so far as they lay down or establish general rules or principles.'

It is further suggested that it was the duty of the...