Waterman v. Skokomish Timber Co.

• Decision Date: 04 October 1911
• Citation: 65 Wash. 234,118 P. 36
• Parties: WATERMAN et al. v. SKOKOMISH TIMBER CO.
• Court: Washington Supreme Court

118 P. 36

65 Wash. 234

WATERMAN et al. v. SKOKOMISH TIMBER CO.

Supreme Court of Washington

October 4, 1911

Department 2. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by Annie Waterman and Annie Waterman, as guardian ad litem of Emily Waterman and others, minor children of Ned Waterman deceased, against the Skokomish Timber Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Bates Peer & Peterson and S. P. Richardson, for appellant.

Hudson, Holt & Harmon, for respondent.

ELLIS J.

This is an action by the appellants, widow and children of one Ned Waterman, to recover damages from the respondent, Skokomish Timber Company, for his death, which it is claimed was the result of respondent's negligence. From a judgment of nonsuit and dismissal and an order overruling appellants' motion for new trial, this appeal is prosecuted.

During the fall of 1910 the respondent was engaged in the logging business, and was driving logs upon the Skokomish river. The work was in charge of one Clarence W. Gregory as general manager. The stream is a small swift mountain stream, and river driving thereon can be prosecuted only during high water. Some nine men, apparently all Indians except the manager, were employed in the work at the time of the accident, among them the deceased, Ned Waterman. The work of river driving consists of releasing logs which have become lodged along the banks of the stream, and in jams therein, so that they may float with the current down to tidewater. A boat is necessary, or at least convenient, for use in this work to convey the men from side to side of the stream and down stream in stretches where no logs are lodged. On November 7, 1910, when the men started to work, Waterman and a man named Robinson took charge of the boat apparently by common consent. At first they used a small boat, but in the afternoon they and one Adams went across the river and secured a larger boat, a cedar 'dug out,' 30 feet long, with 3-foot beam, belonging to the respondent company. Waterman brought over the large boat, and thereafter he and Robinson took charge of it, propelling it with poles 12 to 14 feet long, Waterman in the stern and Robinson in the bow. Work was begun at a considerable distance upstream, and gradually continued downstream till a stretch of river clear of logs was reached, when the men were at intervals taken into the boat in order to go downstream to loosen a jam of logs near where the accident occurred. The work seems to have progressed in this manner, not under any specific orders, but in pursuance of the ordinary custom of river driving. Adams testified that at a point about half a mile above the place of accident, six men being then in the boat, Gregory called to two other men to get in. One of the men, Charlie Frank, answered that the boat seemed to be already loaded. Gregory replied 'in an off-hand way 'that is all right. Get on.'' These men being taken in, the boat on the way down got crosswise in the current and came near capsizing. The boat was stopped about 600 feet above the place of accident in a quiet eddy to loosen some logs and wait for the ninth man, one Wes Whitener, the river boss. This man came down the stream, riding a log which floated into the eddy beside the boat, so that he stepped from the log into the boat. Practically all of the material testimony was given by Adams. He says that, when Whitener came down standing on the floating log, Gregory said, 'Get into the boat, Wes, and let's go on;' that he, Adams, had said just before this, realizing the danger as he viewed the turgid current below, 'Boys, here is where we have to swim.' He did not know whether Gregory heard this remark or not, but neither Gregory nor any one else said anything in reply. There was rather a sharp bend in the river at this point, the current, which was very swift, running near the left bank where the boat was, and Adams testified that, if the boat had been driven to the other side, it could have proceeded downstream with comparative safety. When the ninth man was in, Waterman with his pole shoved the boat out into the current with the bow pointing slightly downstream. The current caught it. It immediately became unmanageable; the water apparently being too deep for the poles to reach bottom. It was carried sidewise rapidly downstream, striking a small partially submerged jam of two or three logs and overturned, precipitating all of the men into the water. Waterman and Robinson were drowned. The others swam ashore.

The negligence charged is that the boat was leaky, that it was not equipped with paddles, and that it was overloaded. The answer denied negligence, and set up as affirmative defenses assumption of risk and contributory negligence on the part of the deceased. These were traversed by the reply.

Conceding verity to all of the plaintiffs' evidence and indulging every inference favorable to plaintiffs which may reasonably be drawn therefrom, we are satisfied that it was not sufficient to take the case to the jury on the charges of negligence. The boat was leaky, and had a knothole in the side over an inch in diameter. The stream was rapid and snaggy, and in places so deep that the bottom could not be reached with the poles used. The evidence tends to show that paddles or oars would have been of aid in such places. The boat was much overladen, considering the character of the stream. It was originally intended to accommodate six or seven men at most.

It is of course, conceded as elementary that Waterman assumed the risk of all dangers incident to the ordinary work of river driving. These included the dangers resulting from the swift, swollen, and snaggy condition of the stream, which it is admitted was too small and shallow for river driving except at time of high water. These dangers, though great, were ordinary and necessarily incident to river driving in high water. They were open, patent, and obvious to any man, and especially to an experienced river man. Beyond question the work was inherently and unavoidably hazardous with any kind of boat, whatever the equipment and however light the load.

It is also beyond question that in this case the leaky boat, the lack of paddles, and the overloading increased the danger and enhanced the risk. But these things were also open, patent and obvious. Waterman knew them, and must have appreciated the danger resulting from them. He was a man 46 years old. He is not shown to have been wanting either in common understanding or in experience as a river man. On the contrary, it is plainly inferable from the evidence that he was bred to that life and labor, and was skilled in the navigation of the river and in the management of boats. He knew that the boat was leaky. He found it full of water when he first secured it. He had helped to bail it out then and at the eddy. He knew there were no paddles in the boat, and knew the danger resulting from their lack. He had almost lost control of the boat, as Adams intimates for lack of paddles, earlier in the day. It does not appear that there were no paddles with the boat when he found it, nor does it appear that he could not have had paddles for the asking. He knew the boat was overloaded. He had been in it longer than any other man of the party. He had a better opportunity to gauge its capacity than any other man there. The peril to be encountered in shoving the boat into the current under the conditions as detailed by Adams was so obvious that the minds of reasonable men could not differ as to its imminence. Adams graphically anticipated it in his words at the time, 'Boys, here is where we have to swim.' Waterman was the boatman and knew the difficulties of management and consequent dangers caused, or likely to be caused, by these things as well as any man could. He made no complaint, suggested no change, uttered no protest. He must be held to have assumed the risk of the enhanced danger. 'A servant who, either before or after he commences the performance of the contract of employment, has ascertained, or ought, in the exercise of proper care, to have ascertained, that the ordinary hazards of his environment have been augmented by abnormal conditions produced by the negligence of his master or of his master's representative, and has accepted or continued in the employment without making any objection and without receiving any promise that the abnormal conditions will be remedied, is deemed, as a matter of law, to have assumed the risk thus superadded, and to have waived any right which he might otherwise have had to claim an indemnity for injuries resulting from the existence of that risk.' 1 Labatt, Master and Servant, § 274, pp. 639-641. For judicial statements of this doctrine, see 1 Labatt, Master and Servant, § 274a. An unbroken line of decisions by this court is in harmony with the above rule. Deaton v. Abrams Co., 60 Wash. 1, 110 P. 615; Shore v. Spokane & Inland Empire R. Co., 57 Wash. 212, 106 P. 753; Ford v. Heffernan Engine Works, 48 Wash. 315, 93 P. 417; Bier v. Hosford, 35 Wash. 544, 77 P. 867; French v. First Avenue Ry. Co., 24 Wash. 83, 63 P. 1108; Danuser v. Seller & Co., 24 Wash. 565, 64 P. 783; Brown v. Tabor Mill Co., 22 Wash. 317, 60 P. 1126; Anderson v. Inland Telephone & Telegraph Co., 19 Wash. 575, 53 P. 657, 41 L. R. A. 410; Bullivant v. City of Spokane, 14 Wash. 577, 45 P. 42; Olson v. McMurray Cedar Lumber Co., 9 Wash. 500, 37 P. 679; Weeks v....