Westby v. Washington Brick, Lime & Mfg. Co.

• Decision Date: 28 September 1905
• Court: Washington Supreme Court
• Parties: WESTBY v. WASHINGTON BRICK, LIME & MFG. CO.

82 P. 271

40 Wash. 289

WESTBY v. WASHINGTON BRICK, LIME & MFG. CO.

Supreme Court of Washington

September 28, 1905

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by Waldemar P. Westby against the Washington Brick, Lime &amp Manufacturing Company. From a judgment for plaintiff defendant appeals. Reversed.

Danson & Huneke, for appellant.

Robertson Miller & Rosenhaupt and B. M. Branford, for respondent.

DUNBAR J.

The respondent, a young man 24 years old, had the tips of his fingers caught in a roller crusher in a brick factory which was owned and operated by the appellant in Spokane county. His left arm was drawn through the roller crusher, badly breaking and mangling it, and tearing the ligaments, so that the arm had to be amputated; also mangling his shoulder to a certain extent where the crusher stopped. The complaint alleged negligence on the part of the defendant, in that it furnished the plaintiff with defective machinery to work with, and that it failed to give the notice of the starting of the engine, which set in motion the machine which the plaintiff was oiling, so that he could have time to escape the dangerous cogwheels which were the cause of his injury; alleged that the defendant had adopted a rule of warning which the plaintiff relied upon, and that said warning was not given him on the morning own which the accident occurred. Upon the trial of the cause, on the completion of the plaintiff's testimony, defendant moved for a nonsuit, which motion was refused by the court. Again, at the close of the whole testimony, the motion was renewed and refused. The jury returned a verdict in favor of plaintiff for $3,200, judgment was entered upon such verdict, and from such judgment this appeal is prosecuted.

The errors assigned are (1) the refusal of the court to grant defendant's motion, made at the end of plaintiff's case; (2) the failure of the court to grant defendant's motion, made after all the testimony was in; (3) the failure of the court to grant defendant's motion for a new trial; (4) error of the court in refusing to give instruction No. 1 requested by the defendant, said instruction being that the jury return a verdict for the defendant. When the case was submitted to the jury, the court, for reasons which do not appear in the record, withdrew from the jury the question of defective machinery. This order of the court was excepted to by the plaintiff; but as the plaintiff has not appealed, the judgment having been in his favor, it is not necessary for us to pass any opinion on the correctness of such order.

Most of the assignments of error can be noticed together, as they all practically involve the question whether or not the testimony showed negligence on the part of the appellant or contributory negligence on the part of the respondent. It may be stated here that the appellant in its answer, outside of the ordinary denials of negligence and assertion of contributory negligence, alleged a settlement with the respondent wherein the appellant was released from all liability on account of the accident. This was denied by the respondent, who alleged that, if such release had been executed, it had been executed at a time when he was unable to contract by reason of his bodily suffering, and that it was a fraud perpetrated upon him by the appellant. It is contended by the appellant that by a rule and custom it blew two small whistles a few minutes before the engine which put the machinery of the factory in operation commenced to work, and one large whistle when the work commenced and that the testimony shows conclusively that this notice was given to the respondent. But, if the testimony of the respondent and his witnesses is to be believed, the jury might well conclude, either that the whistle was not of sufficient volume to be heard at the...