Tergeson v. Robinson Mfg. Co.

• Decision Date: 15 January 1908
• Citation: 93 P. 428,48 Wash. 294
• Court: Washington Supreme Court
• Parties: TERGESON v. ROBINSON MFG. CO.

93 P. 428

48 Wash. 294

TERGESON v. ROBINSON MFG. CO.

Supreme Court of Washington

January 15, 1908

Appeal from Superior Court, Snohomish County; J. A. Coleman, Judge pro tem.

Action by Pearl Tergeson, by Soren Tergeson, his guardian ad litem against the Robinson Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed, and remanded for new trial.

Cooley & Horan, for appellant.

Frank C. Park and Wilshire & Kenaga, for respondent.

CROW J.

This action, which has heretofore been in this court (43 Wash 298, 86 P. 578), was commenced by Pearl Tergeson, by Soren Tergeson, his guardian ad litem, against Robinson Manufacturing Company, a corporation, to recover damages for personal injuries. From a judgment in plaintiff's favor the defendant has appealed.

The respondent, an employé of appellant, was injured on March 2, 1905, while running lattice through a sticker or planing machine, which machine was provided with top, bottom, and side heads, equipped with knives. The lattice material was passed through feed rolls to the lower and upper knives, and thence out of the machine to the rear. A long pole was provided as a belt shifter. It was placed on top of the machine, one end being within easy reach of the operator, and the other end resting in a notch to the rear of the belt and countershaft. In this position it served to retain the belt on the fixed pulley. Near the center of the machine the pole rested between a set screw and an iron casting, which served as a fulcrum when shifting the belt. To stop the machine the operator pulled down the front end of the pole to raise the further end from the notch, drew the pole towards him, pushed it back on the opposite side of the belt, and then, by using the pole as a lever, shifted the belt on to a movable pulley. To start the machine this method was reversed. The heads and knives were located near the center of the machine to the rear of the feed rolls. An iron hood, which could be raised and lowered, was located immediately over the upper head to safeguard the knives. The respondent had on previous occasions fed larger material into this same machine, but his regular employment was to feed moulding into a smaller machine. About closing time on the evening preceding the accident appellant's foreman ordered the respondent to feed lattice material into the larger machine. He did so, and continued the same work about one hour the next morning. The lattice material was crossgrained, which caused one piece to break. This broken piece passed the feed rolls and lower head, but clogged the top head, and extended about 10 inches to the rear above a pressure bar. Respondent stopped the feed rolls, and, without shutting down the machine, attempted to remove the broken lattice by pulling it towards the rear, when it was caught by the top head and drawn back so forcibly and quickly as to carry his hand against the knives. The respondent alleged that the appellant was guilty of negligence, (1) in failing to provide a proper belt shifter; (2) in permitting the hood to become old, battered, and out of repair, so that it did not properly perform the functions of a guard; and (3) in failing to properly instruct respondent, an inexperienced minor, as to the duties and dangers incident to his work. The appellant pleaded assumption of risk and contributory negligence.

Appellant by its several assignments in substance contends that the trial court erred (1) in denying its motion for judgment non obstante veredicto, and (2) in refusing to give instructions requested. In support of the first contention it insists that no failure to instruct respondent or warn him of dangers was shown, sufficient to constitute negligence. We have read the entire record, and conclude that the evidence on this issue was so conflicting as to necessitate its submission to the jury. Appellant further contends that no liability on its part was shown, arising out of any alleged defect in the hood, and that it affirmatively appears that such pretended defect was not a proximate cause of the accident. While it was conceded by the respondent that the hood as originaly constructed was a proper safeguard, it was contended by him and he produced evidence tending to show, that it had been permitted to become out of repair, that it was battered and worn to such an extent that instead of remaining in a firm and fixed position when lowered over the top head it would on being struck move against the knives, that when struck by appellant's hand it did so move, that instead of being a guard it permitted his hand to be carried against the knives, and that no such result would have occurred had it been in good repair. The evidence on this issue was in such direct conflict that it was for the jury to determine whether the hood had become an insufficient guard, whether it was by reason of want of repair a proximate cause of the accident, and whether the appellant was guilty of negligence in permitting it to remain and be used in such condition. Appellant further contends that the evidence conclusively shows the respondent was guilty of contributory negligence in attempting to remove the broken piece of lattice without stopping the knives. There was evidence tending to show that respondent, although a minor, had a limited experience on this and...