Cook v. Danaher Lumber Co.

Citations

• 61 Wash. 118
• 112 P. 245
• 1910 Wash. LEXIS 1294

Syllabus

<p>Master and Servant — Assumption of Risks- — Factory Act — Question fob Jury. Under the factory act of 1905, requiring a mill owner to guard machinery where the employee is liable to come in contact with it in the performance of his duty, the defense of assumption of risks does not apply unless the court can say, as a matter of law, that the employee was not in the performance of duty when he came in contact with an unguarded shaft; and this the court cannot do, where there was a conflict in the testimony as to whether an employee, injured on an unguarded shaft, had to reach over the shaft in order to clean up and remove sticks from a conveyor chain.</p> <p>•Same — Question for Court. Assumption of risks, under the factory act should be withdrawn from the jury, where reasonable minds cannot differ as to the master’s failure to comply with the act.</p> <p>Same — Guarding Machinery — Factory Act — Application. The factory act requiring machinery to be guarded is not limited to employees working with the machine, but applies to any employee whose work makes it possible for him to be injured.</p> <p>Master and Servant — Contributory Negligence — Evidence—Question for Jury. One employed to clean up in a mill and keep a conveyor chain clear is not guilty of contributory negligence, as a matter of law, in reaching over a shaft three feet high to clear the chain, where, under his testimony, the shaft was always in motion when he was about it, making his knowledge of the key-seat on the shaft a question for the jury.</p> <p>Same- — Unsafe Methods of Work — Instructions. Where the court has defined the issues and submitted the law of choice between places to work, it is not error to instruct in the abstract as to the servant’s duty to adopt the safer way, and to refuse an instruction based upon the concrete facts of the case.</p> <p>Same — Due Care — Test—Instructions. It is not prejudicial error to make the test of due care the conduct of an “ordinarily prudent man,” where