Shoemaker v. Bryant Lumber & Shingle Mill Co.

• Decision Date: 13 March 1902
• Citation: 68 P. 380,27 Wash. 637
• Court: Washington Supreme Court
• Parties: SHOEMAKER v. BRYANT LUMBER & SHINGLE MILL CO. [1]

68 P. 380

27 Wash. 637

SHOEMAKER v. BRYANT LUMBER & SHINGLE MILL CO. ^[1]

Supreme Court of Washington

March 13, 1902

Appeal from superior court, King county; Geo. Meade Emory, Judge.

Action by Ralph G. Shoemaker against the Bryant Lumber & Shingle Mill Company for injuries received while in defendant's employ. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Wilshire & Kenaga, for appellant.

Lewis Hardin & Albertson, for respondent.

MOUNT, J.

Action for damages for personal injuries. Plaintiff below recovered a judgment against defendant for $3,100 on account of injuries received in defendant's shingle mill. Defendant appeals.

The gist of the cause of action, as alleged, is negligence on the part of the defendant. The negligence consisted in maintaining a defective piece of machnery, which defect, and the danger incident thereto, were known to defendant, and not known to plaintiff, and they were not the usual risks incident to the employment of plaintiff. The plaintiff was an experienced knee bolter. He was employed by defendant on December 26, 1900, and was not notified of any defects in defendant's shingle mill. Plaintiff began working as a knee bolter in the defendant's mill on the day he was employed, and he was injured on the third day thereafter. While engaged in his employment a block of wood known as a 'shingle bolt' fell from the conveyor in the rear of plaintiff and struck another block of wood on which he was operating, knocking his left hand into a saw, which severed all the fingers and a part of the left hand. The conveyor was an appliance used for carrying shingle bolts from the saw at which plaintiff worked up to the floor above. It consisted of a trough 20 inches wide, about 30 feet long, and with sides about 24 inches high. It ran at an angle of about 40~ from the floor on which plaintiff worked to the floor above. It was placed at right angles to the table which contained the saw, and was at the right of plaintiff, and ran to his rear while he was at work. In the bottom of this trough there was an endless chain containing large, flat, iron links, on which were fastened every 4 feet, two lugs, or upright cast-iron pieces, 5 inches long, sometimes called 'buckets.' This chain, revolving over sprocket wheels at the top and bottom of the conveyor, caused the shingle bolts placed in the conveyor at the bottom by the knee bolter to slide up the trough to the floor above. Near the bottom of the upper floor was an arrangement called a 'gate,' which was hung at one end on hinges attached to the upper floor; the other end resting on the conveyor in such a manner that shingle bolts passing up the conveyor raised the gate until the bolt was passed under it, and then the end of the gate lying on the conveyor would fall behind the bolt, and prevent it rolling back down the conveyor. At the time plaintiff was employed and went to work, several of the lugs or buckets on the conveyor chain had become broken, leaving short stubs. The bottom of the trough of the conveyor crossed the plane of the knee-bolter table about 3 inches to the right of the table, and at the edge of the table toward the operator about 3 inches higher than the table. At the other side of the table it was below the level of the floor. The side of the trough of the conveyor toward the operator came down to within 24 inches of the table. From that point on down it was open to permit bolts to be slid from the knee-bolter saw into the conveyor. It was the duty of the knee bolter to slide the shingle bolts from the saw into the conveyor. The speed of the conveyor chain was about the speed of the ordinary walk of a man. Plaintiff had not before worked in a mill where there were broken lugs on the conveyor chain. He had noticed bolts falling back down the conveyor, but none had fallen therefrom or upon the table at which he was at work. It was common in this mill for the bolts to fall down the conveyor trough, and the number thus falling was estimated at about one per hour. On two or three occasions previous to the time plaintiff was employed, bolts had fallen down the trough and struck upon the table. On one occasion an injury was narrowly averted, and on another a bolt rolled into the saw, and broke the saw. Plaintiff knew nothing of this. Defendant did. The conveyor chain was in view of the plaintiff, to his right, while he was at work. Plaintiff had noticed broken lugs, and immediately before the injury saw a bolt going up on a broken lug. Shortly after this a bolt fell down the conveyor trough, rolled along the table, struck a block which he was about to saw, and knocked his hand into the saw, which severed the left hand, except the thumb. The output of the mill depended upon the rapidity with which the knee bolter prepared the bolts for the knee saw. There was but one knee bolter in this mill, and plaintiff's duties required him, after sawing a bolt and sliding it into the conveyor, to reach behind for another piece of timber. His work was rapid, and kept him busy. It was the duty of the foreman of the mill to keep the machinery in repair. There was some dispute in the evidence as to whether any of the lugs were broken at the time, and also as to the duty of the knee bolter as to how the bolts should be placed in the conveyor. But the facts above outlined are substantially correct, and sufficient for the purposes of this case. At the close of the plaintiff's evidence, defendant moved the court for a nonsuit upon the ground of failure of proof, and that the evidence showed contributory negligence. This motion was denied. At the close of all the evidence, defendant moved the court to discharge the jury and direct a verdict for defendant on the ground that the plaintiff had knowledge of the risk and assumed it. This motion was also denied.

The questions presented by these two motions are closely allied and we shall consider them together. The respondent's case rests upon the allegation of defective machinery, and failure of appellant to warn him of the same, and that respondent did not know, and, with reasonable diligence, could not have known, of the defects and dangers incident thereto. The evidence of plaintiff clearly showed that the machinery was defective. It also showed that he did not notice it particularly, and did not know of the danger incident thereto; that, with proper lugs on the conveyor chain, blocks would not roll back; that blocks rolling back were not necessarily dangerous, unless they left the conveyor trough and rolled upon the knee-bolter table; that respondent had not seen a bolt leave the trough and roll upon the table, and was not informed that they had ever done so; that respondent had not worked in a mill where the lugs of the conveyor chain were broken. It is true, the respondent testified that, if a block fell after it went up the trough, 'it would simply have to fall into the elevator until it got down below to the end of the sides of the elevator. Then it could jump out.' But he nowhere said he had seen them jump out, or knew that there was danger. In other words, there is no evidence that the danger was apparent and obvious. The fact that these blocks could or might jump out was not sufficient to show that the danger was apparent. Danger could not be apparent when no one suspected it. The superintendent of the mill testified, in substance, that if the respondent had seen bolts falling down the trough of the conveyor from time to time, and had not seen one fall out, he would probably not know of the danger. Others testified to the same effect. There can be no assumption of risk unless the danger is apparent. Employés must use their faculties for their own preservation, notwithstanding the employer is bound to furnish a reasonably safe place and reasonably safe appliances with which to work. While this rule requires the use of the ordinary faculties, an employé is not required to make a minute examination to discover whether his employer has discharged his duty in this respect; and, even where the machinery is defective, the defect must be such as to make it apparent that there is danger. Wood, Mast. & S. (2d Ed.) p. 763. Not every defective piece of machinery is dangerous, nor is danger always apparent from defective machinery. While it is true that the plaintiff was bound to take notice of the broken lugs or buckets of the conveyor chain, and while he actually knew that these broken lugs would drop bolts down the conveyor trough, it does not...