Sayward v. Carlson

• Citation: 23 P. 830,1 Wash. 29
• Parties: SAYWARD v. CARLSON.
• Decision Date: 29 January 1890
• Court: United States State Supreme Court of Washington

23 P. 830

1 Wash. 29

SAYWARD v. CARLSON.

Supreme Court of Washington

January 29, 1890

Error to district court, King county.

J. R. Lewis and B. F. Dennison for plaintiff in error.

N. Soderberg, (J. L. Murphey, of counsel,) for defendant in error.

STILES, J.

On the 29th day of March, 1885, the defendant in the court below was the proprietor of the Port Madison Mills, at Port Madison Kitsap county. At the mills he carried on the business of manufacturing lumber, rough and dressed; and from thence, by means of schooners which he owned, he shipped the lumber to various ports of the Pacific ocean for market. The mill premises consisted of an inclosed yard containing one or two acres, with gates for the entrance and exit of employes as the business required. Inside of the yard, and occupying one side of it, was the mill proper, which was a two-story structure 60 or 70 feet in width, and some 300 feet long. In the second story were the saws and principal mill apparatus the engines and planing machinery being on the floor below. The boiler-house and carpenter shop were across an open area from the mill, distant 50 or 60 feet, but within the yard. Adjacent to the mill was a wharf upon which lumber from the mill was run, and thence loaded into the vessels as they required cargoes. At the date named, defendant, who himself resided at Victoria, B. C., had one Meigs employed at the Port Madison Mills as his general superintendent and manager. Meig's authority was very full, so that some of the men who had worked in the mill for years supposed him to be the proprietor. But all hands were paid their wages by defendant's checks signed by Meigs, "agent." Under Meigs, and next in authority, was one Bucklin, who was general foreman over all the work there carried on, and from whom the men in the mill, engine-room, boiler-room, and log chute, and on the wharf, took their general orders; each gang of men, however, as a rule, having a subforeman, who was a laborer himself, and directed the work of those with him. At the date named, there were about 75 men employed in and about the mill premises, in connection with the business of the defendant there carried on. Some had regular employment in certain positions, as the engineer, the fireman, the head carpenter, the head sawyer, and perhaps some of the men in other places, while others had no regular employment, but were shifted from one place to another as occasion required their services. The plaintiff below Carlson, was one of the last-named class, and had been employed in the mill since December 8, 1883. During that time he had been tallyman on the wharf, trimmer, scantling sawyer, gang sawyer, hook tender, and tallyman in the mill. On Saturday, March 27th, he had been acting as tallyman in the mill, and at the close of work on that day was assigned by Bucklin to the scantling saw for the next Monday.

On Beaton was the head carpenter of the establishment, whose duty it was to attend to such carpentering as needed to be done about the premises, either alone or with such assistance as he required. Beaton had been for some time engaged in repairing the schooner Vidette, one of the defendant's vessels, which lay at or near the mill, and had occasion to use some ship's knees in connection therewith. There were ship's knee timbers lying in the water at the mill; and on Saturday the log hauler for the mill drew up some of the timbers into the mill to be sawed, preparatory to being dressed by Beaton at the carpenter shop. The sawing of these timbers required peculiar handling; and Beaton, Bucklin, and some others did the work at the mill saw on Saturday, after the regular work was over, leaving the sawed knees lying on the floor to be removed by Beaton. At that time the mill was running on three-quarter time; work commencing at 8 o'clock in the morning. Carlson's time to begin work was, therefore, 8 o'clock; but Beaton was working on full time, commencing at 7 o'clock.

Between 7 and 8 o'clock on Monday morning, Beaton and two other men, who were in general employ similar to Carlson's, but who at that time were detailed to assist the former, went into the mill to remove the ship's knees sawed the previous Saturday to the carpenter shop. There were a number of the knees, which were triangular timbers, weighing one or two hundred pounds each. There were means by which the knees could have been taken from the mill to the carpenter shop without any danger of injury to any person; but this would have involved carrying each one part of the length of the mill to the front end, down a stairway, and thence back the length of the mill to the shop. A much nearer way was to take them to a window of a small room built out at the side of the mill at the rear, and throw them to the ground, some 15 feet. The latter plan was adopted. Beaton recognized the fact that some person might be passing under the window, and might be injured by a falling knee. Therefore, he directed the men who were about to throw out the first knee to call out warning to any one thus passing. His men looked out and called the warning, and then dropped the knee. The plaintiff, Carlson, at that moment was passing under the projecting room, where he could not see the window, nor the men see him; and he did not hear the warning. So, as he emerged from the overhanging room, he was struck by the falling knee, and severely injured. This action was brought against the proprietor of the mill, Sayward, to recover damages for the injury on the ground that it was the negligence of the defendant's servant in throwing the knee from the window that caused it.

The material allegations of the complaint here involved were as follows: "That, at all the times hereinafter mentioned, plaintiff was employed by defendant as a workman in said saw-mill, in the capacity of tallyman; that on the 29th day of March, A. D. 1885, the plaintiff then being in the employ of defendant in the capacity of tallyman, as aforesaid, in said same saw-mill, having a necessity to go to the water-closet, situate under saw-mill, left his work and went towards said water-closet by the way usually traveled by himself and other workmen employed by defendant in said saw-mill; that, in going from his work to said water-closet by the way aforesaid, the plaintiff was compelled to pass directly under the fire-room of said saw-mill, and while passing under said window certain workmen employed by the defendant as carpenters, and there engaged in repairing the bark Vidette near said mill, by the order and direction of the superintendent having charge and control of said carpenters for and in behalf of defendant, without giving any notice or warning whatever to this plaintiff, threw out of said window a ship's knee weighing 400 pounds or more, and the same fell a distance of 16 feet, striking this plaintiff, who was then passing under said window as aforesaid, upon the head, arm, and shoulder, severely bruising and wounding him, and rendering him senseless, and plaintiff remained in a state of insensibility for the space of ten hours, and was confined to his bed by reason of said injury for a period of one day; that said accident happened, and said injuries were received, wholly on account of the carelessness and negligence of the said superintendent having charge and control, for and in behalf of the defendant, of the carpenters employed by the defendant as aforesaid, and through no fault or negligence on part of plaintiff."

The defendant being a non-resident, plaintiff endeavored to obtain jurisdiction of his person and property by attaching the latter, and making the service of the summons by publication. Numerous motions were made in the court below by the defendant's counsel, appearing specially therefor, for the purpose of preventing the court from assuming jurisdiction upon the attempted service made; and the denial of these motions is here assigned as error. But, whatever weight these motions may have had at the time, we are satisfied that a subsequent motion to open a default which had been entered, which was not upon a limited or special appearance, as well as the subsequent answer, waived all objections to the jurisdiction, and brought the defendant fully before the court.

The answer of the defendant was a general denial. The cause was tried upon the issues thus made, and there was a verdict and judgment for the plaintiff. Upon the plaintiff resting his case, the defendant moved for a nonsuit and for a dismissal of the action, upon the following grounds, viz.: (1) That the complaint did not state facts sufficient to constitute a cause of action; (2) that plaintiff had failed, on the proofs, to make out the cause of action stated in the complaint: (3) that, on the proofs, plaintiff's injuries were caused by his own negligence; (4) that, on the proofs, plaintiff's injuries were caused by a fellow-servant of plaintiff. The court denied the motion, and error is assigned here upon the denial. Upon these errors we are of the opinion:

1. That the complaint was sufficient.

2. The second ground of the motion was based upon the testimony, which showed that plaintiff was injured while on his way to his work in the morning, and before he had commenced work for the defendant for the day, instead of under the circumstances alleged in the third and fourth paragraphs of his complaint, quoted above. But we do not look upon the facts proven and those pleaded as materially varying. The defendant could not have been surprised, and an amendment of the complaint to accord with the facts would have been allowed of course.

3. The third ground for nonsuit was taken in view of certain facts which we have not yet stated in full. Plaintiff, as above set forth, was on Saturday assigned to go to work on...