Hencke v. Babcock

Citations

• 24 Wash. 556
• 64 P. 755
• 1901 Wash. LEXIS 569

Syllabus

<p>' MASTER AND SERVANT-DEFECTIVE MACHINERY-INJURY TO SERVANT -CONTRIBUTORY NEGLIGENCE.</p> <p>In an action to recover for personal injuries, the refusal of the court to instruct the jury to find for defendant, on the ground of plaintiff’s contributory negligence, was proper when the evidence showed that plaintiff, while tending the separator of a threshing machine had the engine stopped so that he could remove and substitute concaves in the cylinder of the separator and straighten the teeth on such concaves; that while he had his hands in the cylinder engaged in such work the engine, owing to its leaky, defective and worn out condition, which was unknown to plaintiff, but of which defendant had knowledge, started - automatically after it had been stopped by the engineer, communicating power to the separator and causing the cylinder to revolve, whereby plaintiff’s hands were so badly lacerated that amputation was necessary; that there would have been no opportunity for the cylinder to be set in motion, if plaintiff had removed the pin holding together the knuckles of two sections of a revolving tumbling rod, which was used to communicate power from the engine to the separator, but it was never customary to disconnect the separator from the source of power in that way; that the cylinder could have been held from turning by the insertion of an iron bar so as to eateh its teeth, but such a method was not customary as it was necessary to slowly turn the cylinder when examining whether its teeth and those of the concaves interfered; and that the evidence as to defendant’s having instructed plaintiff to use an iron bar for the purpose of holding the cylinder was conflicting.</p> <p>INSTRUCTIONS-WITHDRAWAL OF REQUEST FOR WRITTEN INSTRUCTIONS -EFFECT.</p> <p>Where appellants did not ask for written instructions, nor join respondent in his request therefor, the appellants cannot urge the objection on appeal that they had no knowledge of respondent’s having withdrawn his requ