Whitehouse v. Bryant Lumber & Shingle Mill Co.

• Decision Date: 15 October 1908
• Citation: 50 Wash. 563,97 P. 751
• Court: Washington Supreme Court
• Parties: WHITEHOUSE et al. v. BRYANT LUMBER & SHINGLE MILL CO.

97 P. 751

50 Wash. 563

WHITEHOUSE et al. v. BRYANT LUMBER & SHINGLE MILL CO.

Supreme Court of Washington

October 15, 1908

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Death action by May Whitehouse and others against the Bryant Lumber & Shingle Mill Company. Judgment of dismissal, and plaintiffs appeal. Affirmed.

Roberts & Hulbert and O. M. Miller, for appellants.

Graves Palmer & Murphy and Charles H. Winders, for respondent.

DUNBAR J.

This action is brought by the wife and surviving children of George H. Whitehouse, deceased, to recover damages from defendant for the alleged wrongful death of deceased. The complaint contains two general averments as a basis of the action for damages: (1) The failure of the defendant to guard a certain saw, in violation of the factory act; and (2) the employment of an incompetent servant to operate said saw. When the case was called for trial, on motion of defendant, the plaintiffs were compelled to elect upon which cause of action they would proceed, and they elected to proceed upon the cause of action based upon a violation of the factory act. Plaintiffs' intestate was employed as head sawyer in defendant's mill, and had been so employed for a long time prior to the accident. The carriageway and the log deck were in a general way similar to such instruments or appliances in the ordinary mill. Suspended from the beams over the carriageway, and to the south and west of the sawyer's position, is a frame which contains what is called a 'Rosser' saw, a saw used for barking or slabbing the logs before they are sawed, in order to rid the logs of all sand or gravel. This frame is raised or lowered by means of ropes attached. The Rosser saw has coarse, hooked teeth, and clears the log for the band saw. The band saw is eight or ten feet north of the position occupied by the Rosser saw when operating upon the log. At the time of the accident, the sawyer, the deceased Whitehouse, had directed the suspension of the operation of the machine for the purpose of putting off a sharp band saw but at such times it was customary to leave the Rosser saw in motion, and it was left in motion at this time. Accordingly all the men working about the saw and carriage, including the Rosser saw man, by the sawyer's instruction, went to the floor above for the purpose of letting down the sharp saw after the dull saw had been removed, the sawyer, the deceased, Whitehouse, remaining below to loosen the clamp that held the dull saw and to reclamp the sharp saw when it was let down by the man above. After dropping the sharp saw down, the men above waited some 10 minutes for some signal or direction from the sawyer below, when they received word that the sawyer was hurt. The sawyer was found, soon after the accident occurred, in an unconscious condition, and died in a short time without recovering consciousness. His skull was fractured, and the contention of the plaintiffs was that in the performance of his duties he had risen up, and his head had come in contact with the jagged teeth of the Rosser saw, which was the cause of his death. No one saw the accident, but...