Stratton v. C.H. Nichols Lumber Co.

• Decision Date: 27 July 1905
• Citation: 39 Wash. 323,81 P. 831
• Parties: STRATTON et al. v. C. H. NICHOLS LUMBER CO. et al.
• Court: Washington Supreme Court

81 P. 831

39 Wash. 323

STRATTON et al. v. C. H. NICHOLS LUMBER CO. et al.

Supreme Court of Washington

July 27, 1905

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Gertrude Stratton and another against the C. H. Nichols Lumber Company and another. From a judgment for plaintiffs defendants appeal. Reversed.

Root, Palmer & Brown and Douglas, Lane & Douglas for appellants.

John B. Hart and Robt. W. Prigmore, for respondents.

CROW, J.

This action was brought by respondents, widow and minor son of George Stratton, to recover damages for his death, which occurred while he was working as an employé in the shingle mill of C H. Nichols Lumber Company, one of the appellants, at Ballard King county, Wash. From a judgment awarding damages in the sum of $20,000, this appeal has been taken.

George Stratton, a millman of 20 years' experience, was employed in appellant's mill as a shingle sawyer, being in charge of a 'ten-block' machine. Within six feet of him was another ten-block machine, operated by one Freeman Jensen, a fellow servant. The mill was a two-story structure, the ten-block machines being located in the upper story, and operated by power transmitted by means of certain shafts, belts, and pulleys. In the lower story was the main shaft, which was supported by hangers and cross trees suspended from the ceiling, said shaft being about three inches in diameter and about nine feet above the floor. On this shaft was a pulley, over and from which an endless leather belt passed to another pulley on a countershaft in the upper room. On the countershaft were two other pulleys from which belts passed to the machine, transmitting the power by which it was operated. The main shaft, when in operation, made about 600 revolutions per minute. On the outside of the hanger from the main pulley and towards the end of the shaft a collar was placed, which was held in position by an exposed set screw, also about nine feet above the floor. The belt running from the main shaft pulley to the countershaft pulley was new, and, respondents contend, was too tight. On the upper floor an idler, or tightener, was provided, being so arranged as to be thrown against the belt, taking up slack, thereby causing friction, and operating the ten-block machine. The pulley on the main shaft was 42 inches in diameter, and the one on the countershaft 32 inches in diameter. The accident causing the death of George Stratton occurred on December 18, 1902, at about 8 o'clock a. m. A short time before, Matthew Carey, the foreman of the mill, and one of the appellants herein, ordered Mr. Stratton to cut out his ten-block machine until quartering time, which would be about 9:30 o'clock a. m., and respondents contend that Mr. Carey also ordered him to go below and tie back his main belt so as to prevent it from burning by rubbing against the main shaft pulley. The mill was stopped. Stratton threw off the belt, took two pieces of rope, and went below to tie it back. While the mill was stopped, his fellow servant Jensen took advantage of the opportunity to change the saws on his ten-block machine. Respondents claim that while Mr. Stratton was tying back the belt the foreman, Mr. Carey, ordered the mill to start. This is denied by appellants. A signal whistle was given, the mill started, and in about two or three minutes thereafter, an unusual sound being heard below, the mill was stopped, when Stratton's dead body was found on the floor almost under the shaft hanger and set screw, while his clothing and one piece of the rope which he had carried were wrapped around the end of the shaft, the collar, and the set screw near the bridge-tree, on the side opposite from the main pulley. One side of the belt had been tied to the hanger or bridgetree, but the other was not tied back. As above stated, the main shaft was about nine feet from the floor. On the lower floor, and almost under the shaft, were two benches, one being about 24 inches in height and the other about 26. Below the main shaft and pulley, suspended from the hangers and cross-trees, probably about six feet from the floor, was a rack constructed of light pieces of timber, used for holding shingle bands. Opposite this rack was a window, in the side of the building, with a sill or a cleat nailed across it. When last seen alive, Mr. Stratton was up near the shaft, with one foot on the band rack and the other on the window sill or cleat, tying back one side of the belt. No one saw him come in contact with the set screw, nor was any one able to tell how he happened to get caught.

Negligence on the part of appellants is claimed by respondents: (1) In that Carey ordered Stratton to go below and tie back the belt, which was not a part of his usual employment; (2) in the use of the unguarded set screw, which is claimed to have been a dangerous device, not commonly used, recently placed on the shaft without Stratton's knowledge, without notice to him, and improperly adjusted; (3) in using a belt from the main pulley to the countershaft pulley which was too tight, and therefore difficult to remove; (4) in that Carey ordered the mill started while Stratton was tying back the belt. All of these claims are vigorously denied by appellants.

Many assignments of error have been presented, a number of which are sufficient to warrant a reversal; but, as we have arrived at a conclusion which necessitates a dismissal of this action, we will not consider them further than to discuss one, based upon misconduct of counsel. At the time of impaneling the jury respondents' attorney persisted in asking each of the jurors on their voir dire whether they were connected with any guaranty or casualty insurance company, saying in explanation, 'Any kind that insured a mill company against loss; that is, if the mill company was negligent, why then some insurance company paid the damages;' and, when counsel for appellants objected remarked, 'You don't mean to say that the Nichols mill company is not insured?' Again, upon cross-examination of one E. B. Palmer, an attorney, and one of appellants' witnesses, counsel asked if he was not attorney for the casualty company which insured the mill. An objection being sustained, he then offered to prove by cross- examination of Mr. Palmer that he was such attorney. Under the authority of Iverson v. McDonnell, 36 Wash. 73, 78 P. 202, and Lowset v. Seattle Lumber Co. (Wash.) 80 P. 431, this was improper conduct, and constituted prejudicial error. Again, under the guise of questions propounded to witnesses, counsel for respondents placed himself in the attitude of making statements of alleged fact, doing so repeatedly, over objection of opposing counsel; so much so in fact that in making an examination of the record we ourselves have experienced much difficulty in distinguishing these unsworn statements from evidence given by witnesses. It can be readily seen that a jury might easily get these statements and expressions confused with evidence actually admitted. As one illustration, counsel for appellants propounded this question to a witness: 'Well, now, it is not customary to box shafts that are up over a man's head, is it?' whereupon counsel for respondents stated: 'I object, if your honor please, as incompetent, because it is customary to box shafts and protect them wherever they are dangerous, and they are dangerous wherever people have to be.' This course of counsel was continuous, being maintained during the entire trial, although constantly objected to by attorney for appellants, and in face of the fact that in nearly every instance such objections were sustained. It is true the trial was bitterly and ably fought on both sides, and in the heat of a strenuous contest counsel may have in part failed to fully realize the course he was pursuing. But such conduct in the presence of a jury is inexcusable, and cannot fail to be highly prejudicial. Were...