Week v. Fremont Mill Co.

• Citation: 29 P. 215,3 Wash. 629
• Parties: WEEK v. FREMONT MILL CO.
• Decision Date: 26 January 1892
• Court: Washington Supreme Court

29 P. 215

3 Wash. 629

WEEK v. FREMONT MILL CO.

Supreme Court of Washington

January 26, 1892

Appeal from superior court, King county; T. J. HUMES, Judge.

Action for personal injuries by J. L. Week against Fremont Mill Company. Judgment for plaintiff. Defendant appeals. Reversed.

Wiley, Hale & Scott, for appellant.

Jas. Hamilton Lewis and L. Hulsether, for respondent.

SCOTT J.

This action was brought by respondent to recover for personal injuries received by him while in the employ of appellant as a trimmer at appellant's mill, in Fremont, King county Wash. The position of respondent was by a saw, called the "trim saw," which was situated somewhere about midway between the head saw and the edger. The lumber, after leaving the head saw, was shoved along rollers to the trim saw, where, after being trimmed and cut into certain sizes it was shoved past it, and along rollers towards the edger or out of the mill, as the case might be. It was respondent's duty, either by taking hold of the lumber with his hands, or by hooking an instrument therein, called the "picaroon," to help pull it up to the trim saw, and adjust it there in the position in which it was to be cut, and then it was his duty to take hold of the handle attached to the saw, and, by pulling the saw towards him, run it through the lumber. The frame of this trim saw was suspended from a point directly above the rollers. When the saw had been run through the lumber in this manner it was drawn back by weights attached to a lever beneath the floor. A wire rope ran back from the saw through a sheave in the wall, and from there below the floor, where it was connected with this lever, upon which weights were adjusted sufficient to draw the saw out of the way, and hold it there until it was to be used again by pulling it forward. When the saw was drawn back it was respondent's duty to assist in moving the lumber past the position of the saw along the rollers towards the edger, or out of the mill. In moving the lumber from the right side, and past the saw towards the left side, or the side where the edger was, it was necessary for him to pass in front of it. While in the act of returning from the left side to the right side, after having assisted in shoving some of this lumber to the edger, the saw, by the breaking of the wire rope, swung forward against his right arm, inflicting the injuries complained of. He alleges in his complaint that defendant used "an old, worn, unsafe, and insecure steel wire for the purpose of pulling the saw back into its position," etc., and that "said steel wire broke, and caused the saw to spring forward towards this plaintiff." The material allegations of the complaint are denied by the defendant's answer, and, in addition, it alleges that plaintiff was well acquainted with the construction and operation of said saw and appliances, and had the same means of knowledge of any defect that might exist in the steel wire as any other servant of the defendant, and that it was the duty of the plaintiff to see that the machinery and appliances were in good order and repair, and that the defendant and its servants used due care and diligence about the construction of said saw and its appliances, and had no knowledge of any defect therein prior to the happening of the accident; that in the selection of said steel wire it used proper precautions to procure safe, secure, and suitable steel wire; and that said injury was not caused by any negligence of defendant, but was caused by the negligence of plaintiff himself. When the plaintiff rested his case the defendant moved for a nonsuit on the ground that his own evidence would not warrant a recovery, which motion the court denied. The respondent had been at work on the trimming saw, in charge of it, about three months before the accident occurred, and had worked around and about its immediate vicinity for three weeks, or nearly so, before taking charge of it, and in all had been employed about this mill for a period of some six weeks before he began to run the trimmer.

The evidence upon most of the points going to show negligence on the part of the defendant was conflicting. The jury, having found for the plaintiff, must necessarily have found that the defendant was negligent, and the only point we shall consider is as to the negligence of the plaintiff himself, and this only from his own testimony. One Snyder was foreman of the mill, and put the plaintiff at this station without informing him, as the plaintiff claims, of the danger attending the situation; and, when asked the direct question, the plaintiff says that he did not know there was any danger connected therewith, owing to his inexperience in operating machinery. That it was Snyder's duty to look after the mill and the machinery, and see that it was in proper condition, and to instruct the men in their work. He claims no such instruction was given him, and that he was not informed by any one that it was a part of his duty to look after the particular part of the machinery which he was operating. His testimony does show that he knew how the machinery was constructed and operated, so far as this saw was concerned; and it also appears he understood it was his duty to look after it, to some extent at least, regardless of the fact as to whether he had been told to do so or not. In describing the saw and its appliances, and the manner in which it was...