O'Brien v. Page Lumber Co.

Mount, O. J. This appeal is from a judgment in favor of defendant, rendered upon motion for a directed verdict at the close of plaintiffs evidence. Plaintiff appeals. The material facts, as shown by the pleadings and plaintiffs evidence, are briefly as follows: In the year 1902, the respondent owned and operated a sawmill at Buckley, in Pierce county, Washington, for manufacturing lumber. The appellant, William O’Brien, was employed in the mill as a “dogger.” This employment required the appellant to ride backwards and forwards on the saw carriage, and to attach the “dogs” to the log on the carriage. These dogs were devices for holding the logs securely in position — 542 — to saw. It was also the duty of the dogger to detach the dogs, at the direction of the sawyer, when the log was to be turned upon the carriage, and to perform such other duties as were required of him by the sawyer. The saw crew consisted of the sawyer, one tail sawyer, two doggers, and one setter. All of these men were under the supervision and control of the sawyer, and were bound to obey his orders. They took their orders from him and no one else. If they failed to obey him, they were discharged upon his recommendation to the superintendent. Over the sawyer, there was a superintendent, who had general control over the whole mill, and who employed and discharged the men. The appellant was an experienced dogger and thoroughly familiar with the work. Near each end of the saw carriage, was a “head-block” about two feet in height, against which the ends of the logs were securely held by the dogs. Stationary in the floor of the mill, along the line of the carriage way, was a device called a “nigger,” which consisted of a piece of timber with iron spikes along the upper side. This “nigger” was a powerful machine, used in striking and pushing heavy logs on to the carriage, and for turning them thereon when desired. It was operated by steam power by the sawyer, by means of a lever, and in no other way. There was also a chain device overhead, operated by steam power, for rolling logs on the carriage and for turning them while on the saw carriage. The saw carriage was operated back and forth by steam power, by means of a lever in the hands of the sawyer. On the 31st day of July, 1902, a log thirty-two inches in diameter and twenty-four feet long was placed upon the saw carriage to be cut into lumber. After the log had been cut upon three sides, the sawyer desired it to be turned over on the carriage, so as to be cut upon the other side. He moved the saw carriage back for the purpose of using the nigger to turn the log. The dogs were released and the force of the nigger was applied to the log. The carriage — 543 — had not been moved back far enough for the stationary-nigger to strike the log in the center. It struck nearer the end at which appellant was working. Instead of turning the log over upon the carriage, the nigger lifted the end of the log near appellant and placed it upon the head-block where it rested. The sawyer thereupon directed appellant to remove the end of the log from- the head-block back on to the carriage.' Appellant, in obedience to the order, procured a peavy or canthook, and was attempting to pry the end of the log back on to the saw carriage. He was standing with his back toward the sawyer in plain view of the sawyer, who, without warning to appellant, again applied the nigger to the log as it lay upon the head-block. The force of the blow of the nigger knocked the end of the log over the head-block, and the weight of the log caused the appellant to drop his peavy. The other end of the log, toward the sawyer, slid in the opposite direction, and struck and broke the lever, which started the saw carriage forward at full speed, with the log crosswise and raking the sides of the mill. Appellant, in order to escape the log, attempted to get through a door on the side of the mill. As he did so, the log caught his left hand, injuring it so that the amputation of three fingers was necessary. There are two charges of negligence in the complaint: (1) that the sawyer was negligent and careless in applying the nigger to the log, without warning, while appellant was trying to pry the log off the head-block; (2) that the company was negligent in employing an incompetent and reckless sawyer, who was addicted to the use of alcoholic liquor. It is contended, on this appeal, that the evidence was sufficient to go to the jury upon both questions. We are satisfied, however, that there was no evidence upon the second question to be submitted to the jury. The evidence for the plaintiff showed that the sawyer was a competent man for the work when he was employed. If he became — 544 — incompetent, by reason of tbe use of intoxicating liquors or otherwise, • there is no evidence that the respondent had any knowledge 'of the fact, or reasonably should have known it. The other question is more difficult, and is the principal question relied upon by appellant, and is exhaustively argued by both parties. Appellant contends that the sawyer, under the circumstances shown by the evidence, was a vice principal, and that he owed a duty to appellant to warn him of an intention to apply the nigger to the log, while appellant was working with his back to the sawyer, and in no position to see what was going on. Respondent, on the other hand, contends, that the sawyer and the appellant were fellow servants, engaged in a common employment, viz., cutting logs into lumber, each having his special duties to perform, and each working in sight of the other; that the lifting of the end of the log from the head-block to the carriage was a mere detail of the work; that when the sawyer undertook to strike the log with the nigger, and thus assist the appellant to place the log properly upon the carriage, if the sawyer was negligent, either in the use of the nigger or in failing to warn tbe appellant of danger, such negligence was the negligence of a fellow servant, for which the master would not be liable. It will thus be seen that the question presented is, whether the sawyer was a vice principal, or was a fellow servant with the appellant, in respect of the warning. This question is argued with learning and ability on both sides, and many authorities are called to our attention in support of the respective positions. In some respects, the sawyer was a fellow servant with the appellant. It required the labor of both to place the logs upon the saw carriage. The appellant attached the log firmly to the carriage so that it might be passed through the saw by the sawyer. The appellant loosened the logs from the carriage so that the sawyer might turn them at the proper time. In these respects, — 545 — they were fellow servants, working together, each having his particular duties in the common employment of converting logs into lumber. In some respects, the sawyer was a vice principal. He was the superior in control of the saw crew, consisting of the doggers, the setter, and the tail sawyer. These men were bound to obey his commands. He directed their work when directions were necessary. They took their orders from him and “no one else.” If they failed to obey him, they were discharged upon his recommendation to the superintendent. It is true; there is no evidence that the sawyer had power to hire men or to discharge them except as above stated; but we held, in Allend v. Spokane Falls etc. R. Co., 21 Wash. 324, 58 Pac. 244, that “the power of superintendence and control is the test” in such eases. Hnder this rule, the sawyer stood in the place of the master, for the purpose of directing the work of the saw crew, and was therefore a vice principal to that extent. We are also of the opinion, that the sawyer was a vice principal in respect to the safety of the place and the appliances. “It is the master’s duty to provide a safe place for his employee to do his work, and to see that it is kept in a suitably safe condition, and this duty he cannot delegate to another so as to relieve himself from liability.” McDonough v. Great Northern R. Co., 15 Wash. 244, 46 Pac. 334, and cases cited. There appears to be no contention in this case that the appliances were not in good order, or that the place was not as safe, under ordinary circumstances, as the character of the work would permit. These facts are therefore conceded. As to the details of the work in which the sawyer and appellant were fellow servants, the master was not liable; but when the log was placed by accident in an extraordinary position upon the head-block, the direction of the sawyer to appellant to remove the log was a command — 546 — by the master to tbe servant wbicb be was bound to obey. It was tbe duty of tbe master, tben, to keep tbe place into wbicb be bad sebt tbe servant reasonably safe, or to inform tbe servant of dangers known to tbe master, or wbicb reasonably should bave been known to bim, and wbicb were unknown to tbe servant. If tbe sawyer, acting in the' place of tbe master, intended to direct another agency under bis control to act in conjunction with tbe appellant, wbicb agency rendered tbe place dangerous, it was certainly the duty of tbe master to inform tbe servant thereof. Especially, where tbe servant was in such a position that be could not observe tbe agency, or tbe fact that it was about to be put into action. Respondent contends that tbe act of tbe sawyer in using tbe nigger tbe second time was a detail of tbe work, and in that respect be was acting as a fellow servant. This contention is probably correct, so far as tbe mere fact of using tbe nigger was concerned. But in view of tbe fact that, when tbe nigger was used tbe first time, It threw the log upon tbe bead-block, it was apparent to every one that another blow by tbe nigger, while tbe log was in that position, would send it further over and make tbe position of tbe appellant an extremely dangerous one and, therefore, it was tbe duty of tbe master to see and know of tbe danger, and not to direct the nigger' into action without notice to tbe appellant. In other words, tbe sawyer, as master, knew that be was about to direct tbe nigger into action. He knew, or should bave known, of tbe peril in wbicb be was about to place tbe appellant. Tbe appellant did not know what tbe master bad ordered. He could neither see nor bear bim. Tbe sawyer, tben, as servant, performed tbe detail of tbe work as directed by bim as master. Tbe negligence wbicb made the place a dangerous one -was tbe failure of tbe sawyer as master to warn tbe appellant of tbe danger in which be was about to place tbe servant. This view of the case, wbicb we think is tbe logi — 547 — cal and correct one, brings this case squarely within the rule announced in Nelson v. Willey Steamship & Nav. Co., 26 Wash. 548, 67 Pac. 237, and cases there cited, where We held, in substance, that when the performance of an act will place a servant in a dangerous place which is known, or should be known, to be such, and where such act is performed by a fellow servant at the command of the vice principal, it is the duty of the master to warn the servant in such dangerous place, and a failure to give such warning is negligence of the master. This case cannot reasonably be distinguished in principle from the Nelson case, and is controlled by it. Counsel for respondent argues that the principles which were applied to the case of Sayward v. Carlson, 1 Wash. 29, 23 Pac. 830, and cases which subsequently approved that case, are applicable to this case upon the question as to whether the sawyer and the dogger were fellow servants. But from what we have said above, indicating that the Sawyer was a vice principal as to the duty to warn the appellant of the danger of the place, his negligence in this respect was the neglect of the master, and distinguishes Sayward v. Carlson from this case. There being sufficient evidence to go to the jury upon this point, the lower court erred in directing a verdict for defendant. The judgment appealed from is therefore reversed, and the cause remanded for further proceedings. Hadley, Fullerton, and Crow, JJ., concur.