Smith v. Michigan Lumber Co.

• Decision Date: 08 August 1906
• Court: Washington Supreme Court
• Parties: SMITH v. MICHIGAN LUMBER CO.

86 P. 652

43 Wash. 402

SMITH v. MICHIGAN LUMBER CO.

Supreme Court of Washington

August 8, 1906

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by William Smith against the Michigan Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Israel & Agnew, for appellant.

Govnor Teats, for respondent.

FULLERTON, J.

This is an action for personal injuries. The record discloses that the appellant was engaged in the business of operating a lumber mill, and that the respondent was one of its employés. At the time the accident happened which resulted in his injury, the respondent was operating a saw known as the 'cut-off saw'; his duties being to trim and cut into suitable length the dimension lumber as it came from the main saw, and to cut the slabs into pieces so that they could be readily handled by those whose duties were to bear them away. Between the cut-off saw which the respondent was operating and the main saw were a set of rollers operated by machinery called 'live rollers,' onto which the lumber and slabs fell after they left the main saw. The off-bearer in charge of these rollers at the time of the accident was a man by name of Perala or Parella, the name being spelled both ways in the record. His duties were to so operate these rollers as to best facilitate the work of the sawyer operating the cut-off saw, by causing them to roll the lumber and slabs falling on them from the main saw down to the cut-off saw so that the operator of that saw could conveniently cut them into the required lengths. At the time of the accident the timber pieces passing the main saw onto the two rollers were 10 inches by 10 inches in size, and of various lengths. These were being passed down to the cut-off saw two at a time, and the sawyer was expected to cut through both of them with one pull of the saw. At one of such trials the respondent was unable to do this, the saw losing its speed too fast, owing, perhaps, to the excessive friction and it was let back so that it might regain its original momentum. At the time of letting the saw back the respondent gave to the off-bearer operating the live rollers what he testifies was the signal to hold them as they were, and again, pulled the saw onto the timber for the purpose of completing the cut. The off-bearer at the same time started the live rollers which caused them to carry other timbers against the timbers the respondent was cutting, pushing them against the saw, and causing it to bind and break. The saw broke into three pieces one of which struck the respondent on the right arm, and so tore and mutilated it as to necessitate its amputation at the shoulder joint. The grounds of negligence which the respondent set out in his complaint as the proximate cause of the injury were that the off-bearer who started the rollers was incompetent and careless and known to be so by the appellant, and that the cut-off saw was defective in that it had several large flaws in it near the circle of the collar used to fasten it onto its shaft; which flaws, it is alleged, were also known, or with reasonable diligence could have been known, to the appellant. The appellant for answer denied the allegations of negligence contained in the complaint, and for an affirmative defense, alleged that the appellant by the terms of his employment had assumed the risk of injury from the saw, that he was guilty of negligence which contributed to his injury, and that the injury was caused by the negligence of his fellow servant. The affirmative allegations of the answer were put in issue by a reply, and a trial was had which resulted in a judgment for the respondent in the sum of $3,375.

In his original complaint the respondent alleged that the name of the off-bearer in charge of the live rollers at the time he was injured was _____ Christo, further alleging that his first name was not known by him. When the case was called for trial the respondent asked for leave to amend the complaint by inserting the true name of the off-bearer therein, which he averred was Gust Perala, instead of _____ Christo. The appellant objected to the application on the ground of surprise, contending that it had come prepared to defend the case on the theory that Christo and not Perala was the off-bearer...