Zintek v. Stimson Mill Co.

• Decision Date: 29 March 1893
• Citation: 6 Wash. 178,32 P. 997
• Court: Washington Supreme Court
• Parties: ZINTEK ET AL. v. STIMSON MILL CO.

32 P. 997

6 Wash. 178

ZINTEK ET AL. v. STIMSON MILL CO.

Supreme Court of Washington

March 29, 1893

Appeal from superior court, King county; R. Osborn, Judge.

Action by Francisca Zintek and others against the Stimson Mill Company for the death of Alexander Zintek while in defendant's employ. From a judgment of nonsuit plaintiffs appeal. Reversed.

For dissenting opinion, see 33 P. 1055.

Turner & McCutcheon, for appellants.

Stevens Seymour & Sharpstein, for respondent.

SCOTT J.

This action was brought by the plaintiffs to recover damages of the defendant for negligently causing the death of Alexander Zintek, who was at the time performing labor for the defendant at its mill yard at Ballard, in King county. At the conclusion of the plaintiffs' case, the court below granted a motion for a nonsuit, on the grounds that the deceased and one O. C. Nelson, under whom he was working were fellow servants, and because no negligence had been proven against the defendant. The evidence shows that the deceased and one John Marzillger, at the time of the injury were engaged in removing a pile of lumber, and were working under said Nelson, who was then, and had been for a long time prior thereto, yard boss in said mill yard. Near the lumber which the deceased and Marzillger were removing was another pile of lumber, which had been placed there while Nelson was yard boss, as aforesaid. The evidence shows that this lumber had been negligently piled particularly from the bottom for some distance up, and that it had been carried to a height of 16 feet or more. After the deceased and Marzillger had nearly removed the lumber from the pile upon which they were at work, a portion of the upper part of this pile which had been negligently constructed broke off and fell over, and in falling caught the deceased, and injured him so severely that he died from the effects thereof. There was testimony to show that said yard boss had entire control of the yard, that he hired and discharged workmen, and that the workmen about the yard worked under his orders; and also to show that it was the duty of said yard boss to superintend the piling of the lumber in the mill yard. He performed no labor himself, such as handling lumber, but had charge of the yard, and superintended the workmen and the management of the yard. No claim was made by the respondent, in its brief or upon the argument, that there was any contributory...