Noren v. Larson Lumber Co. ( 1907 )

Root, J.

(dissenting) — I dissent. I not only think requested instruction numbered 5 was in accordance with Johnston v. Northern Lumber Co., 42 Wash. 230, 84 Pac. 627, and other cases heretofore decided by this court, but I believe it to be clearly right as an original proposition. It was applicable to the case and should have been given — or some instruction covering the same proposition should have been. This was not done. The instruction given in lieu thereof does not cover the same question. The direction contained in the latter part of the instruction given the jury conflicts with the preceding portion of the instruction, and is entirely at variance with the plain language of the statute. Conflicting, one portion with another, it was necessarily confusing to the jury. Being confusing, and a material portion being inconsistent with the statute, it was erroneous and prejudicial. The statute requires a “reasonable” guard where it is “practical to guard” and where the machine and appliances “can be effectively guarded with due regard to the ordinary use of such machinery and appliances.” The instruction given contains none of these limitations. Under that instruction, it is not sufficient for the guard to be “reasonable,” “practical,” and the appliance “effectively guarded with due regard to the ordinary use of the machinery and appliance.” This instruction requires that it must be “a guard sufficient to protect the plaintiff against such dangers as reasonably intelligent and experienced millmen or operators would have anticipated.” In other words, the millowner is made an absolute insurer against any.and all such anticipated dangers, no matter how inherently dangerous the machine or appliance is, and without that “due regard to the ordinary use” which the statute plainly mentions. The nature and use of many machines are such that it is absolutely impossible to safeguard them so as to protect an operative from dangers reasonably to be anticipated. He and everybody else knows this. The statute recognizes this fact and contains limitations accordingly. The instruction complained of ignores both the fact and the statute.

Crow, J., concurs with Root, J.