Hall v. West & Slade Mill Co.

Fullerton, J. The respondent was injured while employed in the lumber mill of the appellant, and brought this action to recover therefor. He was successful in the court below, and this appeal is from the judgment entered in his favor. In the lumber mill in question were two parallel lines of rollers, located about four feet apart, extending almost the entire length of the mill. One set of these, called dead rollers, led from the back of the gang edger, and received such timber products as were passed through that machine. The other set were called live rollers, being kept in motion, when in use, by the motive power used to operate the mill. The device used to connect the rollers with the motive power was an ordinary steel shaft, with cogwheels and pinions, which extended the entire length of the line of rollers; the same being fastened to the frame work in which the rollers operated on that side next to the dead rollers before mentioned. The shaft was not one continuous piece, but was made up of several sections connected together by means of iron bands or collars, held in place by set screws. The shaft, cogwheels, pinions, collars and set screws were left uncovered and exposed. The respondent was required to work between the two lines of rollers. A part of his duty was -to take that part of the timber products passing through the gang edger which was suitable only for laths or wood and throw it over the live rollers to the gang saws, which were located on the opposite side of the same. While performing these duties on [449] the morning of the 21st of August, 1903, the respondent’s clothing caught on a set screw, which had,»been allowed to project from three-fourths of an inch to an inch from one of the collars used to splice the shaft, and wound around the shaft, drawing the respondent down upon it, and between it and the frame work which held the rollers, breaking his arm between the elbow and shoulder, breaking his collar bone, and crushing and maiming the bones of his shoulder, leaving "him a permanent cripple. To a complaint embodying the foregoing facts, the ap>pellant answered, and, after making certain denials and admissions, set forth that the respondent had actual notice and knowledge, for some two weeks before he was injured, that the shafting on which he was injured was in an uncovered and exposed condition, and that the set screw which caught his clothing projected from the collar, and knew, also, of the dangers incident to working in such an exposed place; averring that he not only assumed the risk of working in that place, but was guilty of contributory negligence in so doing. To the defense of assumed risk, a demurrer was interposed, and sustained by the court on the ground that the appellant had not complied with the act of March 6, 1903 (Laws 1903, p. 10), which requires all operators of mills and workshops to place safeguards over all such cogs, gearings, shaftings, and the like, that can be properly safeguarded, before putting the same into use. On the trial the respondent admitted, on cross-examination, that he knew for some time prior to receiving his injury, of the unguarded machinery, and of the fact that the set screw on which his clothing caught projected from the collar for a considerable distance; testifying also that he knew that if it caught his clothing it was liable to injure him, and that he came against it in a moment of forgetfulness while handling a heavy piece of timber. A motion for nonsuit was interposed at the conclusion of the respond [450] ent’s case to the jury, which the trial judge overruled. The judge also refused to instruct the jury to find for the appellant on the ground that the respondent had assumed the risk, but instructed them to the effect that the appellant could not claim the benefit of the common law doctrine of assumed risk, for the reason that the appellant had not safeguarded the shafting on which the respondent was injured, as it was required to do by the mandate of the statute above cited. The several rulings of the trial court to the effect that the defense of assumption of risk was not available to the appellant, as against the respondent’s cause of action, constitute the first error assigned, and it is to this question that the arguments of counsel are mainly directed. The rule as announced by the trial court is in accord with the decision of this court in the case of Green v. Western American Co., 30 Wash. 87, 70 Pac. 310, and unless that case is to be overruled, it is controlling on the question here. The appellant urges that it should be overruled, contending that it is neither supported by the better reasoning nor by the weight of authority. But after further consideration, we are not convinced that the case is unsound in principle, or that it vio<lates any rule of public policy. It is not necessary here, however, to state the reasons on which the decision rests. This is ably done by the judge who announced the opinion in the case, and by the distinguished judge from whom he so lengthily quoted. But we do not wish to be understood as conceding that the case is without authority in its support. While it may be true, as the appellant contends, that the weight of authority is against it, yet we find it supported by courts respectable in numbers as well as in ability. In addition to those cited in the ease itself, the following may be consulted: Monteith v. Kokomo Wood Enameling Co., 159 Ind. 149, 64 N. E. 610, 58 L. R. A. 944; Sipes v. Michigan Starch Co. (Mich.), 100 N. W. 447; Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. 319; Litchfield [451] Coal Co. v. Taylor, 81 Ill. 590; Catlett v. Young, 143 Ill. 74, 32 N. E. 447; Durant v. Lexington Coal Min. Co., 97 Mo. 62, 10 S. W. 484; Landgraf v. Kuh, 188 Ill. 484, 59 N. E. 501; Lore v. American Mfg. Co., 160 Mo. 608, 61 S. W. 678; Henderson v. Kansas City, 177 Mo. 477, 76 S. W. 1045; Greenlee v. Southern R. Co., 122 N. C. 977, 30 S. E. 115, 65 Am. St. 734, 41 L. R. A. 399; Kilpatrick v. Grand Trunk R. Co., 74 Vt. 288, 52 Atl. 531, 93 Am. St. 887. In some of the cases above cited, particularly those from the courts .of Illinois and Indiana, no distinction seems to he made between the doctrine of assumption of risk and of contributory negligence, but the facts of the cases, as well as the language of the courts, support the doctrine for which the Green case contends. We conclude, therefore, that the trial court did not err in holding that the doctrine of assumption of risk was not available to the appellant as a defense to the respondent’s cause of action. The appellant next contends that the court erred in refusing to rule, as a matter of law, that the respondent was guilty of contributory negligence. All that the evidence shows on this question is that the respondent continued in his work after he had knowledge of the fact that the collar and set screw which caused his injury were iincovered. But it will hardly do to say that an employee is guilty of contributory negligence for merely working in a dangerous place when he does not assume the risk of injury ±or working therein. It is true that in such cases contributory negligence and assumption of risk approximate, and it is. difficult to draw a line between them, but we think that, to convict an employee of contributory negligence for working in a place where he does not assume the risk of injury, it must be shown that he did not use care reasonably commensurate with the risk to avoid injurious consequences; in other words, that it was some negligent act of his own that caused his injury, and not alone the dangers of his situation. Narramore v. Cleveland etc. R. Co., 96 Fed. 298, 48 L. R. A. 68. [452] Appellant’s requested instruction No. 3 was properly ref-fused for the reason that it assumed that the appellant had furnished the respondent with a reasonably safe place in which to work, the very question at issue. The other assignments of error are met by what is said on the questions of assumption of risk and contributory negligence. The judgment is affirmed. Mount, C. L, Hadley, and Dunbar, JJ\, concur.