Campbell v. Wheelihan-Weidauer Co.

Rudkin, J. During the month of July, 1905, the plaintiff was in the employ of the defendant in its sash and door factory at Everett, and while so employed was engaged in operating one of the planer or sticker machines. This machine was supplied with three cutting devices, called heads, [676] and designated as the top head, the side head, and the lower head. The top head was located at the end of the machine nearest the operator, the side head near the middle of the machine, and the lower head, which caused the injury complained of in this action, at the extreme rear of the machine. At the point where the lower head was situated, there was an opening in the bed of the machine, three or four inches in width and six or eight inches in length, to permit the surface of the material in course of manufacture to come in contact with the' knives in the head of the machine. While the machine was in operation, that portion of the opening not covered by the material handled was left open and unguarded. At the time of the accident complained of, the plaintiff was handling material from one and three-fourths to two and one-half inches in width, so that the opening and the knives in the head were unguarded, except in so far as they were covered by this narrow material. While engaged in his work, the plaintiff passed down the side of the machine towards the rear, for the purpose of inspecting a hot-box, and in so doing slipped or stumbled, and his right hand in some manner came in contact with the revolving knives, causing the loss of all four fingers. This action was brought to recover damages for the injuries so inflicted. The negligence charged was failure to safeguard the lower head of the machine, as required by the factory act of 1905, Laws 1905, p. 164. Section 1 of that act provides as follows: “That any person, firm, corporation or association operating a factory, mill or workshop where machinery is used shall provide and maintain in use, . . . reasonable safeguards for all vats, pans, trimmers, cut-off, gang edgcr, and other saws, planers, cogs, gearings, belting, shafting, coupling, set screw, live rollers, conveyors, mangles in laundries and machinery of other or similar description, which it is practicable to guard, and which can be effectively guarded with due regard to the ordinary use of such machinery and appliances, and the dangers to employees therefrom, and with which the employees of any such factory, mill or workshop [677] are liable to come in contact while in the performance of their duties.” The defense was contributory negligence and assumption of risk. The jury returned a verdict in favor of the plaintiff in the sum of $7,500, and from the judgment entered thereon, the present appeal is prosecuted. The first assignment of error is the insufficiency of the evidence to justify the verdict. The particular point made is that there was no competent evidence to show negligence on the part of the appellant in failing to safeguard the machine. There was a direct conflict in the testimony on the question whether it was practicable to guard the lower head of the machine, and whether it could be effectively guarded, with due regard to the ordinary use of the machine or appliance. Under such circumstances the question of negligence in failing to properly safeguard the machinery was exclusively for the jury. As said by this court in Rector v. Bryant Lumber etc. Mill Co., 41 Wash. 556, 84 Pac. 7: “Doubtless many cases will arise in which the court can say, as a matter of law, from the location of the machinery, and the uses to which it is supplied, that it can or cannot be advantageously guarded; but between these extremes there will necessarily arise a large class of cases where the question will be solely one of fact. The statute does not attempt to specify the particular machinery that shall be guarded, but declares that all machinery of a certain class shall be provided with proper safeguards where this can be done advantageously. If there is a conflict in the testimony as to whether a particular machine can or cannot be advantageously guarded, the question must be submitted to the jury under proper instructions. Under our system of jurisprudence there is no other way to determine the fact. In this case there was ample testimony, if believed by the jury, to establish the fact that the chipper could have been guarded advantageously, and if the jury so found, this would establish negligence on the part of the respondent as a matter of law and preclude the defense of assumption of risk.” To the same effect, see, Erickson v. McNeeley & Co., 41 Wash. 509, 84 Pac. 3. [678] The appellant further contends that the respondent cannot recover, because of his neglect to notify his employer of the failure to safeguard the machinery, as required by § 6 of the factory act. This notice is for the sole purpose of obtaining an inspection by the commissioner of labor, and is not a prerequisite to a recovery of damages under the act. Doubtless if the machinery had been properly guarded, and the guard became defective or out of place, it would have been the duty of the servant to notify the master of such defect, as is the case in regard to any other defect in the machinery about which he is employed, but this rule has no application where there is an entire failure to guard the machinery or appliances, within the knowledge of both the master and the servant. It is finally contended that the verdict is excessive. In the case of Kirby v. Wheeler-Osgood Co., 42 Wash. 610, 85 Pac. 62, the court said: “The respondent lost the ends of the first three fingers of his right hand, and his thumb was split, and the joints left stiff, leaving him the full use of the little finger only. The verdict was for five thousand dollars, and the appellant complains that it is excessive. Damages of this character are the most difficult of all damages to measure in money, and are peculiarly within the province of the jury. For this reason, courts allow many of such verdicts to stand, notwithstanding they may feel as individuals that the sum allowed is greater than they would have consented to had the question been submitted to them primarily. In this instance, however, we feel that the verdict is larger than can be justified, even .taking the most liberal view of the evidence, and have concluded that it ought not to be permitted to stand for a greater sum than $3,500.” The injury here complained of is of like character and little more severe than in the case cited, and in view of what was there said, we are of opinion that no verdict in excess of $5,000 should be here permitted to stand. The case will therefore be remanded to the superior court, with instructions to allow the respondent 30 days after no [679] tice to him that the remittitur has reached that court, in which to remit from the judgment $2,500. If the remission be made the judgment will stand affirmed, but if not a new trial will be granted. The appellant will recover its costs on appeal. Hadley, C. J., Fullerton, Crow, Mount, and Dunbar, JJ., concur.