Dossett v. St. Paul & Tacoma Lumber Co. , 40 Wash. 276 ( 1905 )

Mount, C. J.

Respondent brought this action against the appellant to recover for personal injuries. The cause was tried to the court and a jury, which returned a verdict in favor of the plaintiff for $7,500. The defendant appeals from a judgment on the verdict.

At the trial there was very little dispute upon the facts in the casej which are substantially as follows: The appellant owns and operates a lumber manufacturing plant, in Tacoma, at which, plant a large number of men are employed. These men were divided into gangs of men at the several departments of the work. Moses La Faw was foreman of the mill, and hired and discharged all employees. There was a superintendent over Mr. La Faw. At what -is called the head of the mill were two large band saws, where the logs from the mill pond were received, and from which the lumber as cut passed through various operations in the mill until it was finally carried out into the yards. Each of the gangs of men had one principal man who had charge of the men in the gang, and who gave working directions when necessary. Usually each man knew his duties after his first instructions, and performed them without special direction.

At what was called the “short side” of the saw mill, James McAnally had charge of a gang of five men, whose duties were to operate one of the saws and cut logs into lumber. Mr. McAnally was the “head sawyer,” known as such by reason of the fact that the logs first came to his saw. His duties were to operate the saw and machinery necessary to pass the logs into the saw, and also to direct the men working with him. These men were under his direction and control, and bound to obey his orders. They were hired and discharged upon his request, by the foreman, Mr. La Faw.

.The respondent, Dossett, was one of the gang of men under Mr. McAnally, and was known as the “log deck man.” The log deck was about eighteen feet wide, and about fifty feet long, north and south. On the east side of the log deck, were the rolls upon which logs came up into the mill from the mill pond. The saw carriage was to the west of the log deck, which was' slightly inclined from the rolls* on the east, to tire saw carriage, on the west. This saw carriage was operated back and forth, northerly and southerly, at the will of the sawyer. On the saw carriage were two, and sometimes three, men who stood behind the log and set iron dogs into the log, so as to hold it steady-on the carriage, and so as to change its position from time to time as required. The sawyer operated the saw carriage by means of a lever, at the northwest comer of the log deck, close to the saw. Immediately over the saw carriage were two friction rollers, one of which was operated by an overhead lever, just behind the sawyer at the north end of the. log deck, and the other roller was operated by a similar lever at the south end of the log deck, which lever was operated by one of the carriage men. The sawyer’s pit was a little lower than the log deck, and near the saw.

In the floor of the. log deck were three large slots, about two feet wide, extending at right angles from the saw carriage into the log deck. The first and third of these slots were about six feet long; the second was about ten feet long. The first of these slots was about ten feet south from the sawyer, the second about sixteen feet, and the third about twenty-three feet south. In the first and third of these slots were what wore called, “push arms/’ which were iron castings which worked on a hinge, and when not in use rested in the slots. These push arms were used for the purpose of pushing logs on to the carriage. The middle slot, which was the largest, having a length of about ten feet, was occupied by what was called the “nigger,” or Simonson log roller. ■ The body of the nigger was about the same shape as the push arms, but it had a large hinged hook on the top end of it, which hook could be used to pull a log from the carriage, while the push arms and the nigger itself were used to push or strike logs into' position. When not in use, this hook folded down into the face of the nigger. When the nigger was not in usei, it rested in the slot in the log deck, the same as the push arms.

These push arms and nigger were operated solely by the sawyer, by means of a single lever, held in his left hand, at his station in the saw pit. The movements of this lever were so arranged that the sawyer could either throw up the push arms and the nigger together, or throw up the push arms alone, or throw up the push arms and nigger and extend the hook forward over a log all at the same time. The nigger, however, could only he raised part of the way up, unless the push arms were already up, or were raised with it. The push arms and nigger constituted a very powerful machine hy means of which the largest logs could, be handled with the greatest ease, the motive power being steam, and the nigger having an independent piston capable of driving it against a log with great force. These push arms and nigger were used for placing logs on the saw carriage after the logs were placed within reach of them. The nigger was used only when the push arms were insufficient.

Across the floor of the log deck, and at right angles to the saw carriage, were skids of iron, about four inches high and a few feet apart, for logs to roll upon. One of these skids was about two feet from the nigger slot towards the sawyer’s pit, and parallel with it. It was Hr. Dossett’s duty to roll logs from the log deck on to the saw carriage, or within reach of the push arms. When the time came for a log to be placed upon the saw carriage^ Mr. Dossett was required to wrap a chain around the log on the log deck, fasten one end of the chain, on which was a swamp hook, into the log, and hook the link on the other end of the chain into a chain on the overhead friction roller. Then, by means of the lever near the sawyer, he rolled the log down to the saw carriage, or within reach of the push arms. Sometimes logs were placed on the saw carriage without the use of the push arms. When the chain on the log was no,-longer needed*to place the log on the carriage, it was Dos-sett’s duty to remove the chain from the log as speedily as possible, and make ready for another log when needed. He had been working around the mill for about four years, but had been filling the position of log deck man about three weeks, only, at the time of his injury. He had been requested by the sawyer to be more prompt in getting his chain off the logs.

At the time of the accident, a log about thirty-six feet long, and about four feet in diameter, was being rolled down by respondent from the log deck on to the saw carriage, by means of the friction roller operated by the lever behind the sawyer. This log was larger at one end than at the other, and did not come squarely on to the carriage. Mr. McAnally thereupon directed respondent to stop the use of that roller, and to change the position of the chain, and to attach it to the other roller. At the same time', Mr. McAnally directed Mr. Giese, one of the doggers, to go to -the friction roll at the south end of the log deck, and operate that lever so as to roll the log down. By this rear lever, the log was rolled further down, but would • not. go upon the carriage as required.

Mr. McAnally thereupon brought up the push arms to drive the log-into position. Respondent then went up to the log for the purpose of removing the chain. He was standing with his back toward the sawyer, and by the side of the slot in which the nigger lay. Mr. Giese gave the chain some slack so that it could be removed. Respondent thereupon placed his back to the log and reached across the line of the nigger slot to jerk the chain loose from the log. At the instant he did this, Mr. McAnally brought up the nigger, which struck respondent on his side and stunned him, so that he fell or slid down, with his arm crossing the nigger which was still pushing against the log, so that the blade of the hook crushed his arm practically off near the shoulder. The arm was immediately afterwards amputated. Respondent was in plain view of Mr. McAnally, about twenty feet from him, and Mr. McAnally was looking in the direction of respondent. He could have readily seen him. The foregoing facts are not disputed.

There was some evidence to the effect that respondent was not supposed to remove the chain until the doggers had set their dogs, and that, until this was done, and while the push arms were up, the sawyer was at liberty to use the nigger, and if the push arms were not sufficient to place the log in its proper position on the carriage, the nigger was then put into use. There was some evidence to the effect that, when the push arms were in use>, it was respondent’s duty to immediately remove the chain, unless ordered not to do so by the sawyer.

A demurrer to the complaint was denied, and at the conclusion of plaintiff’s evidence, defendant’s motion for a non-suit was also denied, appellant contending then, as it does now, that the allegations of the complaint and the facts proven and admitted on the trial show, as a matter of law, that the respondent and the sawyer MeAnally were engaged in a common employment as fellow, servants, and each was bound to know what the other was doing, and bound to look out for his own safety, and that there was no duty of the master to warn one servant against the conduct of a fellow servant. This same question was also presented to the lower court upon a motion for a new trial after verdict.

Since the appeal in this case, and since the arguments of counsel, we have recently had the same question under consideration in the case of O’Brien v. Page Lumber Co., 39 Wash. 537, 82 Pac. 114, which was a case similar in all its essential features to this case, and we there held that the sawyer was a vice principal, upon whom rests the duty to warn a servant in a dangerous place, known, or which should have been known, by the sawyer, and unknown by the servant to be such, and that a failure of the sawyer to give warning under such circumstances is negligence of the master. This is not a new doctrine, and is based upon humanity and sound reason. The sawyer is in command and control of the servant, who is bound to obey. The sawyer sees and knows the position of the servant, who is in the active discharge of his duties. The sawyer, alone, knows of an agency which he may or may not put into operation, which agency, when in operation, becomes dangerous and makes the place of the inferior servant dangerous. When such servant does not know, and has no means of knowing, the danger of the place; it is the imperative duty of the master to1 warn him thereof. This duty cannot be delegated so as to relieve the master of liability. To hold otherwise would relieve the master of his duty to furnish a reasonably safe place for the servant, and would permit a superior servant in control to take the life or limb of such inferior servant, without an opportunity for self-protection or escape. Neither the law nor the dictates of humanity permit such results. Nelson v. Willey Steamship & Navigation Co., 26 Wash. 548, 67 Pac. 237; Costa v. Pacific Coast Co., 26 Wash. 138, 66 Pac. 398; Shannon v. Consolidated etc. Min. Co., 24 Wash. 119, 64 Pac. 169; Uren v. Golden Tunnel Min. Co.; 24 Wash. 261, 64 Pac. 174; Sroufe v. Moran Bros. Co., 28 Wash. 381, 68 Pac. 896; Wilson v. Northern Pac. R. Co., 31 Wash. 67, 71 Pac. 713.

Upon the question of contributory negligence, we are satisfied after examining the evidence that there was no question for the court. The evidence was conflicting upon that point. It was a question, therefore, for the jury. Appellant invokes the rule in this case that, where there are two ways of doing a duty, one safe and the other dangerous, if the servant elects the dangerous way and is injured, he cannot recover, and cites authorities to that effect; and in that connection argues that the respondent could have walked around the nigger, instead of reaching across the.plane of its action, and if he had done so; would not have been injured. It is sufficient to- say, upon this point, that there was no apparent danger in reaching or stepping across the plane of the action of the nigger.' While the nigger rested in its slot, and was not in use, there was no- more danger in reaching across than there was in walking around. The place was apparently safe. It was, in fact, safe when respondent chose that way. There was no real danger unless the sawyer should put the nigger in operation. When he did so, the place became dangerous, but not until then. There was evidence to the effect that it was customary to cross this slot when the nigger was not in use; that, as soon as the push arms were up^ it was respondent’s duty to remove the chain, unless directed otherwise. He was not directed to leave the chain upon this occasion. If this evidence was true, respondent was justified in being where he was, and also in believing that the place was safe. This question was therefore one for the jury. The rule contended for cannot apply where both ways are safe.

It is argued, also, that the signal to remove the chain was the act of the doggers in setting their dogs. There was evidence to this effect, but this evidence was also disputed, as stated above. This fact was one for the jury, and not for the court, to find.

The complaint alleged that the sawyer was incompetent and habitually negligent and careless, and that the same was known to the appellant, and unknown to the respondent. It is also alleged that appellant was negligent, because it failed to provide a safe place for respondent to work, or safe methods and regulations. Appellant moved to strike out these paragraphs, which motion was denied. At the trial, the court permitted evidence to be introduced to the effect that, upon one occasion, about a month before the injury complained of in this case, Mr. McAnally, the sawyer, injured one of his men slightly, and narrowly averted a serious accident, which was generally discussed about the mill; and, also, evidence to the effect that McAnally was cross and irritable toward the men under him. The court refused to strike this evidence out of the case, and appellant urges these rulings as error. We said, in Green v. Western American Co., 30 Wash. 87, 70 Pac. 310:

“Specific acts of ineompetency of the pit boss were admissible in evidence under the general allegation that the pit boss was ignorant and incompetent, and under this allegation evidence was admissible that the pit boss did not have regard for the lives of the men under his charge, etc.”

Under this rule, the allegations in the complaint were sufficient, and the evidence offered was competent, and it was therefore not error to deny the motion to strike out the paragraphs of the complaint or to strike out the evidence. We are, however, of the opinion that there was not sufficient in this evidence to sustain a finding of negligence against appellant upon these grounds alone. If this were the only evidence of negligence in the case, we should not hesitate to dismiss the action. But there was clearly sufficient evidence upon other grounds hereinbefore discussed, and we are further clearly of the opinion that, if the court erred in refusing to strike this evidence, such error was harmless, because the court clearly 'and fairly instructed the jury as to what questions of negligence they might consider under the evidence, and the ineompetency of the sawyer was not one of them..

Appellant also contends that the court erred in permitting three witnesses, who had been employed for a long time as sawyers in other mills, to testify as to the duties of sawyers under circumstances surrounding this accident. The testimony was in corroboration of witnesses who had already stated what were the rules in appellant’s mill at the time of the accident. It is no doubt true that customs or rules in one mill are not necessarily the customs or rules adopted in others of the same kind and capacity, but we think it Was not an abuse of discretion on the part of the trial court to receive evidence of this kind (Traver v. Spokane St. R. Co., 25 Wash. 225, 65 Pac. 284), because reasonable rules and customs in mills of the same kind and capacity are generally the same, unless special conditions render different rules necessary or more convenient and adaptahla There was no error in receiving the testimony of these witnesses. Appellant in its briefs makes numerous objections to the instructions which the court gave to the jury. The most important of these objections are covered by what we have already said. We do not deem the other objections of sufficient merit to justify further discussion. It is sufficient to' say that the instructions given by the court fully and fairly covered every theory of the case, and were as favorable to the appellant as could safely be given.

We find no reversible error in the record. The judgment is therefore affirmed.

Hadley and Dunbar, JL, concur.

Crow, L, concurs in the result.