Banks v. Seattle School District No. 1 , 195 Wash. 321 ( 1938 )

ROBINSON, J., dissents. Plaintiff brought this action to recover damages for injuries sustained while operating a printing press maintained by defendant for the use of students in connection with a regular course of instruction. From judgment entered upon a verdict in favor of plaintiff, defendant appeals.

The machine was what is called a foot press, the power for its operation being supplied by the pressure of the operator's foot upon a treadle. The press proper is mounted upon four standards, between the front two of which there is a crossbar. The treadle extends under this crossbar and, when in operation, comes to within an eighth of an inch from it. Upon the treadle, and at a distance of nine and one-fourth inches from the crossbar, is a foot plate, upon which the operator puts his foot. This foot plate is three and three-fourths by eight inches, and has a heel hold. While operating the machine, respondent's foot slipped and was caught between the treadle and crossbar.

Two charges of negligence were submitted to the jury: (1) Failure to mount the press so as to give greater clearance between the treadle and the cross-bar; and (2) failure to equip the treadle with a guard which would prevent the operator's foot slipping between it and the crossbar.

On behalf of respondent, a printer, with seven years experience with various kinds of presses, including those operated by foot power, testified as follows:

"A. On inspecting the treadle I found that the treadle did not have the proper clearance from the cross-member of the frame; that it came up within one-eighth of an inch of the cross-member of the frame; that if it had been so properly mounted — say 2 by 4's were put under the legs and the connecting rod between the crankshaft and the treadle were screwed down and lengthened, there would be no opportunity for anybody having any member of their body caught in between the treadle and the cross-member. But the clearance was not proper between the treadle and the cross-member of the frame. Q. Was there any other way to provide a safeguard for the press? A. At the time that I saw the press, the press had a safeguard on it . . . Q. Do you consider it practical to have a guard on this type of treadle? A. Yes, I would consider it practical."

[1] Appellant's principal contention is that this evidence is insufficient to make out a case of negligence for the jury. The argument is predicated upon the principle stated in 45 C.J. 660, and approved in Ullrich v. Columbia Cowlitz R. Co.,189 Wash. 668, 66 P.2d 853, that:

"The question of negligence must be determined according to what should reasonably have been anticipated, in the exercise of ordinary prudence, as likely to happen."

Measured by this rule, we think respondent's evidence was amply sufficient to take the case to the jury. What with keeping his hands from getting caught by the platen press, the operator can hardly be expected to think about keeping his foot from slipping between the treadle and the crossbar. That such a mishap might occur, and should be reasonably anticipated, we think is sufficiently manifest from the mere description of the machine — particularly when operated by novices of the age of respondent. Since, under respondent's evidence, the injury could have been avoided by a proper guard, or by setting the press up in a manner to give sufficient clearance between the treadle and crossbar, the question of appellant's negligence was for the jury. See Howard v. Tacoma School Dist. No. 10,88 Wash. 167, 152 P. 1004, Ann. Cas. 1917D, 792; Bowman v. UnionHigh School Dist. No. 1, 173 Wash. 299, 22 P.2d 991.

[2] Appellant assigns error upon the denial of its motion for new trial. This error is predicated upon the admission of evidence to the effect that, subsequent to respondent's injury, appellant put a guard on the treadle, designed to keep the operator's foot from slipping between it and the crossbar. This was not admitted as evidence of past negligence, but merely in support of respondent's contention that the machine could be practicably guarded. The court so instructed the jury. The issue being in the case, the evidence, so limited in scope and purpose, was admissible. Erickson v. McNeeley Co., 41 Wash. 509,84 P. 3; Thomson v. Issaquah Shingle Co., 43 Wash. 253,86 P. 588; Lindblom v. Hazel Mill Co., 91 Wash. 333, 157 P. 998;Wheeler v. Portland-Tacoma Auto Freight Co., 167 Wash. 218,9 P.2d 101; Hatcher v. Globe Union Mfg. Co., 178 Wash. 411,35 P.2d 32.

Appellant raises another question, which we shall not discuss, for, as said in its brief, the point made is "not of sufficient materiality in itself to justify a new trial."

Judgment affirmed.

MILLARD, MAIN, and BEALS, JJ., concur.