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during the operation of sawing the ventilators. One stands at the front of the saw, and pushes the bundle along over it. The other stands in the rear, receives the bundle as it comes over the saw, and then passes it back to the one in front, who runs it over the saw again to cut another row of ventilating slits. The saw revolves toward the one in front, who adjusts the bundle to the guide, and then pushes it over the saw, leaning forward as the bundle moves from him across the table. As he pushes, both hands are upon the bundle, and his face is downward until the top of the saw has cleared the bundle, when the other party, who is called an "off-bearer," takes it as aforesaid. At this juncture the operator's right hand is immediately over the saw. As the saw emerges from the edge of the bundle next to the operator, it begins to throw dust, and, to protect his eyes, he pulls his hat down over them, and this obstructs his view of the offbearer. Considerable force is required to push the bundles over the saw, inasmuch as they range in weight from 30 to 60 pounds. Care is required of the off-bearer in taking the bundles away from the saw. If the bundle is jerked from the operator while he is in the position above described, his hand is liable to fall down upon the saw. The plaintiff had worked now and then around machinery for several years, but had never done the kind of work above described; he being but 18 years of age at the time of the accident. On the day of the accident a boy by the name of Griffin applied to the defendant for work. He was about 16 years of age and weighed about 100 pounds. He had never before worked in a mill. During the forenoon of that day Griffin worked taking away material from an ordinary ripsaw which the plaintiff was running. The work was simple, as he merely carried away the stuff as it was ripped. During that time he now and then put sticks on top of the saw which were thrown toward the plaintiff until plaintiff asked him to stop it; Griffin apparently not realizing the danger that might result from such amusement. During the afternoon of that day, the foreman of that department went to the plaintiff, and ordered him to operate the veneer ventilating saw heretofore described. The plaintiff objected, saying he had never done that work, and did not understand it. The foreman replied that they had a big order, and that the plaintiff must take up that work. At the same time he ordered the boy Griffin to act as off-bearer for the plaintiff; the duties being as heretofore described. The foreman said: "You want to be careful, and don't get your mits in here. If you do, you are liable to get them whacked off. I got a couple of fingers cut off ventilating this stuff." He also said to the plaintiff to be careful, and he ran one bundle through the saw. It was testified, however, that he did not show the boy Griffin how his

work should be done, or otherwise warn or instruct him. The boys proceeded with the work until about half past 4 o'clock in the afternoon, when the plaintiff was passing a bundle over the saw. It had almost reached the point where the plaintiff was to let go of it, his hat being pulled over his eyes to protect them from the dust, when Griffin quickly jerked the bundle away, and the plaintiff's hand fell upon the saw, whereby it was severely cut and torn, leaving permanent injuries. The plaintiff looked up, and Griffin still held the bundle. Plaintiff looked at his hand, and made some exclamation, when Griffin became frightened and ran away. There is really but little dispute about the foregoing facts, and, in any event, there is sufficient evidence to sustain all that is above stated. The cause was tried before a jury, and a verdict was returned for plaintiff in the sum of $2,500. Judgment was entered for that sum, defendant's motion for new trial was denied, and it has appealed.

The errors assigned are that the court refused to take the case from the jury at the close of respondent's evidence and again at the close of all the evidence; also that appellant's motions for judgment notwithstanding the verdict and for new trial were denied. These assignments all involve the sufficiency of the evidence to establish the liability of appellant. Appellant by its answer not only denied negligence on its own part, but pleaded contributory negligence on respondent's part, and also alleged that the accident was due to the negligence of a fellow servant, and that respondent assumed the risk. The question of contributory negligence under such evidence as was submitted here was clearly for the jury, as has been repeatedly held by this court. Perhaps in an ordinary case the court might have concluded under this evidence that the proximate cause of the accident and injury was the negligence of the fellow servant, and that it was therefore a mere question of law for the court, and not one involving facts for the jury. The circumstances shown in evidence were, however, not usual. Here was a dangerous saw, revolving at great speed, in an exposed position. The exposure seems to have been necessary in order to accomplish the work as designed. Common experience would seem to suggest that about such a dangerous machine and situation only thoughtful persons of mature and deliberate judg ment should be permitted to work. In any event, if young persons without maturity of mind and without experience are employed, it follows with equal force that they should be carefully shown how the work should be done, and fully warned against the dangers of failing to follow instructions. Here was a young man 18 years of age, who had been employed at other work in the factory. The foreman ordered him to forthwith take charge of this ventilating saw. He remon

strated on the ground of lack of experience, but he was commanded to proceed at once with the work. A boy 16 years of age, who had never worked in a mill before that day, was ordered to take the position at the other side of the saw, and discharge the duties heretofore described. This boy was not instructed as to his duties, and was not warned of the danger that might result to his working companion under such circumstances as have been detailed. That he was not a boy of deliberate or mature mind is not only indicated by his youth, but also by other facts. In the forenoon of that day he, for amusement, threw sticks upon the ripsaw to see them whirled away. These were thrown near the face of respondent, who narrowly escaped injury therefrom. Again, when respondent was injured, the young boy became alarmed and ran away. Such facts indicate extreme boyishness and lack of judgment or experience sufficient for the responsible position he was directed to fill. If it be said that appellant had not actual knowledge of these boyish traits, it may also be said that such traits may reasonably be expected in all boys of that age, unless by actual experience certain boys may have demonstrated more serious, thoughtful, and mature judgment. Perhaps a person older than respondent might have refused to work with such an inexperienced boy at such a place, but respondent was himself a mere boy. He had not done this work before and perhaps did not realize the danger of such a situation as arose. Moreover, he was required by his employer to act quickly and without time for deliberation. It should not, therefore, be said as a matter of law that he assumed the risk, and, under such circumstances, we think it was properly for the jury to determine whether appellant was negligent in placing so young and inexperienced a person at work at that place, whether it neglected to properly instruct him how to safely do the work, or to warn both him and the respondent of the incidental danger; and also whether the injuries of the respondent were primarily traceable to such negligence. The court submitted these questions to the jury, and the verdict established the negligence of appellant.

Neither party has cited in the briefs any authorities touching any question involved. The facts are such as lead us into the realm of fundamental principles which operate, or should operate, between men. Legal precedents are not necessary where the consciences of ordinary and reasonable minds universally accept certain principles as fundamentally right and just. Such minds intuitively believe that if an employer assumes to employ children or persons of extreme youth and inexperience about dangerous machinery, even if the act of employment in a given case is not itself negligence, it is at least negligence for the employer not to first inform himself

as to the experience and capability of the youth to cope with the particular situation, or to fail to properly and carefully instruct him about his work, or to warn him against impending danger to himself and others. In Kirby v. Wheeler-Osgood Co., 42 Wash. 610, 85 Pac. 62, this court, however, discussed to some extent the rules for determining whether an employer has been negligent in the employment of children and young persons. Within what is there said, it was not for the court under the facts in this case to determine as a matter of law that appellant was not negligent. Under instructions the court properly submitted all questions of negligence to the jury, and, the jury having found that appellant was negligent in the premises, the verdict should be sustained for the foregoing reasons.

The judgment is affirmed.


(47 Wash. 698)

SMITH v. CAPITOL BOX CO. (Supreme Court of Washington. Sept. 7, 1907.) Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Joseph Smith, a minor, by his guardian ad litem, Viola Smith, against the Capitol Box Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R. S. Eskridge and Philip Tindall, for appellant. Govnor Teats, for respondent.

HADLEY, C. J. This is an action to recover damages for personal injuries. The facts are in essential particulars the same as those involved in cause No. 6,761, Cox v. Capitol Box Co. (decided by this court Sept. 7, 1907) 91 Pac. 555. The accident occurred in the same mill, and the plaintiff here was engaged in doing the same kind of work as was the plaintiff in the case cited. For a description of the plaintiff's situation as an operator of the ripsaw cutting ventilating slits in the bundles of veneer for use in grape boxes, we refer to the statement of the facts in the opinion in the cause mentioned. In the case at bar the plaintiff, who was operating the ventilating saw, was at the time about 16 years of age, and his off-bearer, a boy by the name of Haviland, was somewhat older, but at the time of the accident he was not yet 17 years of age. Haviland quickly jerked the bundle of veneer away just as it was about to clear the saw, and the plaintiff's hand dropped from the bundle against which it was pressing and fell upon the saw, whereby it was severely cut and injured. The plaintiff had during his employment been most of the time engaged in other work, and up to the time he was hurt he had operated the ventilating saw perhaps as much as one whole day. He and Haviland had been work

ing together at the saw but a short time when the accident happened. There was evidence that Haviland was of a negligent nature; that he was indolent, and that he worked in a lubberly, careless way, that he was generally reputed among the employés of the mill as being incompetent and lazy, and as taking no interest in his work. He had worked in the mill about a month, and the foreman daily passed and observed, or could have observed, his manner and method of working. The cause was submitted to a jury under issues and instructions similar to those in the case above cited, with the result that a verdict was returned for plaintiff in the sum of $1,000. Judgment having been entered for said sum, the plaintiff has appealed.

We see no reason for distinguishing this case from that of Cox v. Capitol Box Co., supra, unless it be in the way of finding additional elements of negligence which possibly make this a stronger case against appellant. There is no necessity for reviewing these in detail further than as they are suggested above. The parallel facts of the two cases we think are sufficient of themselves to lead to the same result, and for the reasons stated in the other opinion the judgment in this cause is affirmed.


(47 Wash. 141)


In an action for injuries to a minor servant, an instruction that if both plaintiff and defendant were negligent, and plaintiff's negligence contributed proximately to the injury, plaintiff could not recover, was objectionable for failure to define the standard of ordinary care which would constitute negligence on plaintiff's part precluding a recovery. 2. SAME.

In an action for injuries to a minor servant, an instruction that if defendant gave plaintiff reasonable instructions as to the use of tools and machines, and plaintiff did not observe such instructions and so received an injury in consequence, defendant would not be liable therefor, was erroneous for failure to require the jury, in determining what constituted reasonable instructions to plaintiff to consider all the circumstances of the case, particularly the youth of plaintiff and the extent of his experience.


An instruction that if plaintiff, a minor servant, did any act which contributed proximately to his injury, he could not recover-that is, if he did anything which contributed "in any way to the injury," defendant was not liable though negligent-was erroneous, as requiring of plaintiff more than the exercise of ordinary care.

Appeal from Superior Court, Spokane County: Wm. A. Huneke, Judge.

Action by Edgar Gage, a minor, by J. I. Seward as guardian ad litem, against the Springston Lumber Company. From a judg

ment in favor of defendant, plaintiff appeals. Reversed and remanded.

Thos. H. Wilson, John C. Kleber, and Robertson, Miller & Rosenhaupt, for appellant. Danson & Williams and Peacock & Ludden, for respondent.

HADLEY, C. J. This is an action to recover damages for personal injuries. The defendant operated a sawmill at Springston. Idaho, and the plaintiff was at the time of the accident in the defendant's employ. The plaintiff was then a boy 15 years of age. He was when injured operating a drag or cutoff saw for cutting slabs into shorter lengths. As the slabs were cut from the logs by the main saw of the mill, they were carried by means of live rolls to a position in front of the cut-off saw. This saw was suspended in a swinging frame, and operated by means of an overhead shaft, with accompanying pulleys and belt. When the slab was in proper position, the operator of the saw pulled the saw frame toward him by a handle attached for that purpose. This dragged the saw toward the operator, and. by its circular motion, it cut its way through the slab; the course described by the saw being that of the arc of a circle. As the saw emerged from the slab, its moving teeth came above the table on which the slab rested, and revolved in front of the operator. While the plaintiff was thus operating the saw, it was drawn forward so as to strike his right arm, entirely severing a portion of the arm from his body. The complaint charged negligence on the part of defendant in a number of particulars relating to the construction and method of operating the saw, and also charged that defendant neglected to instruct the plaintiff as to the dangers and hazards of said place and the defects in the saw and appliances. It was also alleged that these were not obvious to the mind of the plaintiff, and that he neither knew nor appreciated the dangers. The defendant denied that it was negligent, and averred that the plaintiff's injuries were due to his own contributory negligence, and also that, with knowledge of the danger, he voluntarily assumed the risk thereof. The cause was tried before a jury, and a verdict was returned for the defendant. Plaintiff's motion for new trial was overruled, and judgment was entered dismissing the action. The plaintiff has appealed from the judgment. The errors assigned all relate to instructions which were given to the jury and to the refusal to give others requested by appellant. The respondent argues that, even if errors were committed in giving the instructions, they became harmless in view of the verdict, for the reason that it was entitled to have the jury instructed to return a verdict in its favor. We do not think the evidence warranted such an instruction in respondent's favor. Under the testimony, all questions of negligence or contributory negli

gence were for the jury, and each party was entitled to have those questions submitted to the jury by correct instructions, fully and clearly defining the law applicable to the facts as claimed by him. Somewhat extensive instructions were given, and to set forth all the criticised instructions in hæc verba with a discussion thereof would require more space than the importance of the subject warrants. The respondent urges that, when the instructions are read as a whole, the objections to segregated parts thereof are overcome. In some respects such would doubtless be true in some cases; but, under the particular facts of this case, we think that. even when the instructions are all considered as a whole, there are some parts that may have been confusing and misleading to the jury to the possible prejudice of appellant. Without undertaking to take up in detail all the subjects assigned as error, we will refer to certain ones only. The following instruction was given: "Or, if you should find that both the plaintiff and defendant were negligent, and the plaintiff's negligence contributed proximately to the happening of the injury, then the plaintiff cannot recover, and your verdict must be for the defendant." It will be seen that no reference is made in this instruction to the standard of reasonable and ordinary care as being all that was required of appellant. The instruction might easily have been understood by the jury to mean that, without regard to any question of care. if appellant's conduct in any way contributed to the injury, it became negligence and precluded his recovery. The rule is, however, that, to constitute contributory negligence. there must be want of ordinary care, having in view all the circumstances of the case and such lack of ordinary care must contribute to the injury as an efficient cause thereof. Am. & Eng. Enc. of Law (2d Ed.) 375, 380. A part of the text upon the last cited page. supported in the footnote by the citation of many authorities, is as follows: "Nor will the fact that the person injured proximately contributed to his own injury by his conduct constitute contributory negligence, if he was not guilty of a want of ordinary care." The following appears in the instructions: "But if the defendant should give the plaintiff reasonable instructions as to the use of tools and machines, and the plaintiff should not observe such instructions, and should receive an injury in consequence, the defendant would not be liable therefor and the plaintiff could not recover." The above fails to call the attention of the jury to the fact that in determining what were reasonable instructions to appellant they should take into consideration all the circumstances, particuiarly the boyhood of appellant and the extent and character of his experience; that to make such instructions reasonable they must have been such as would have been understood by an ordinary boy of appellant's age

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and experience, leading such an one to appreciate the dangers of the situation. It is true in another instruction reference is made to the age, experience, and capacity of appellant, and that respondent should have taken these into consideration when instructing appellant; but no standard is specified for such instructions, except that that degree of care should be exercised which an ordinarily prudent person would exercise under like circumstances. We think, in view of the boyhood of appellant and of his necessarily limited experience at the age of 15 years, that he was entitled to more specific statement of the duties resting upon the employer of children than the mere general statement applicable to the ordinary cases of adult persons. "Complaint is further made of a series of instructions, all to the effect that the conduct of the deceased, who was a girl of 13, was to be measured by what an ordinarily cautious, careful, and prudent person would have done under the same circumstances. It is said that herein no allowance is made for the fact that the deceased was a minor child, and that the jury might well have been misled into believing that the care, caution, and prudence required of her were the care, caution, and prudence which the ordinary adult person would have exercised under the same circumstances. Of course, as was said in Studer v. S. P. Co., 121 Cal. 400, 53 Pac. 942, 66 Am. St. Rep. 39: The same act which would be negligence in an adult may not be such if done by a child: but a child is required to exercise the same degree of care that would be expected from children of his age, or which children of his age ordinarily exercise. Children, as well as adults, should use the prudence and discretion which persons of their years ordinarily have. The law imposes upon minors the duty of giving such attention to their surroundings and care to avoid dangers as may fairly and reasonably be expected from persons of their age and capacity.' In this regard, also, to avoid the possibility of misunderstandings, the instructions could profitably be made more explicit." Quill v. Southern Pacific Co., 73 Pac. 991, 140 Cal. 268. With respect to the difference between the general rules applicable in cases of adults and children, see, also, Kirby v. Wheeler-Osgood Company. 42 Wash. 610, 85 Pac. 62.

The following instruction was given: "It is also the law that the plaintiff assumes all known dangers in and about his duties, and if there were defects or dangers in and about the machinery plaintiff was working at, and the plaintiff knew, or in the exercise of ordinary care should have known, of such defects and dangers, then he assumes all risk of danger from such defects, and if he is injured thereby the defendant would not be liable and the plaintiff cannot recover; and where the defects, if any, are known and apparent, the plaintiff assumes all danger there

from, whether he has been instructed as to such defects or not." In the above instruction no reference is made to the boyhood of appellant, or to the rule as to ordinary care in such a case. The jury were left to infer that the same test for determining ordinary care applies in the case of instructing the child as in that of an adult. In this respect the instruction was defective. "In such cases, while a minor employé is held to have assumed the risks of the employment, yet it is only such risks as one of his age, discretion, and experience can be said to have comprehended that he will be charged with having assumed. And he may recover for injuries resulting from dangers that, by reason of youth, immaturity, and inexperience, he was unable to fully apprehend, and the perils of which had not been explained to him." 7 Am. & Eng. Enc. of Law, pp. 407, 408. The following instruction was given: "If the plaintiff himself did any act which contributed proximately to his injury, then he cannot recover, and the defendant would not be liable, even if the defendant was negligent in any one or more of the respects alleged in the complaint, and which caused the injury. In other words, where the plaintiff himself did anything which contributed in any way to the injury as I have heretofore stated, then he cannot recover even if the defendant was negligent." The above instruction squarely stated to the jury that, if the appellant did "anything" which "in any way" contributed to his injury, he could not recover, and that, too, without regard to how much or what degree of care he may have exercised under all the circumstances. instruction was erroneous within the decision in Atherton v. Tacoma Railway & Power Co., 30 Wash. 395, 71 Pac. 39, and cases there cited. The rule as stated in the instruction requires that appellant, in order to entitle him to recover, should have been absolutely free from any negligence whatever. By the opinion cited and other decisions of this court there mentioned, it is established in this state that all that the law requires in such cases is the exercise of ordinary care under the circumstances surrounding one, and that he may exercise such care although he may be slightly negligent in the broadest sense of the term.


Other assignments are made relating to the instructions given and requests refused; but we believe further discussion is not necessary, in view of what has been herein before said. The judgment is therefore reversed, and the cause remanded, with instructions to grant a new trial.



We think the last instruction quoted erroneous, and for that reason concur in the result: FULLERTON and RUDKIN, JJ.

(47 Wash. 57)


In an action for injuries to servant, evidence held to show a prima facie case of defendant's negligence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 954, 977.] 2. SAME-PLEADING-ALLEGATION OF NEGLI


Where, in an action for injuries to a servant, the complaint charged negligence in furnishing plaintiff with a defective cable attached to a gin pole used in loading logs onto cars, the further allegation that defendant failed to provide plaintiff with a safe place to work was a deduc tion from the specific acts of negligence charged, and did not widen the scope of the inquiry, so as to authorize evidence of negligence not covered by the specific allegation.

Root, J., dissenting.

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by W. C. La Bee against the Sultan Logging Company. From an order granting plaintiff a new trial, defendant appeals. Affirmed.

Graves, Palmer & Murphy and C. H. Winders, for appellant. Roney & Loveless and Hathaway & Alston, for respondent.

FULLERTON, J. This is an action for personal injuries. At the time he received the injury for which he sues, the respondent was in the employ of the appellant, working with a gang of men engaged in loading saw logs onto railroad cars. In loading the logs the men had the assistance of mechanical appliances. These consisted of a large heavy pole, some 40 feet in length, known in the vernacular as a "gin pole," set with the heavy end in the ground by the side of the railroad track, and slanted over the track, so that the upper end reached a point immediately above its center. The pole was stayed with three steel cables; one end of each of them being fastened to the top of the pole and the other carried back and made fast to a tree or stump or some other fixed object sufficiently secured in the ground to withstand a strain. Fastened to the top of the gin pole so as to swing immediately under it was a heavy pulley. Some distance back from the track a donkey engine was stationed, from which another wire cable was run through the pulley fastened to the gin pole. It was by means of this cable that the logs were rolled and lifted onto the cars. The cable was also used for another purpose. Cars were brought to the loading station a number at a time. As they could be loaded only from a place on the track immediately under the gin pole, it was necessary, after loading a car, to move it forward on the track so that another might be brought in its place, and the practice was to leave the cars coupled together and move the entire train. This moving was done by hitching the cable used to load the logs onto the far

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