Smith v. Hewitt-Lea Lumber Co.

Citations

• 55 Wash. 357
• 104 P. 651
• 1909 Wash. LEXIS 762

Syllabus

<p>Master and Servant — Contributory Negligence — Scope of Employment — Evidence—Sufficiency. In an action for personal injuries sustained by an oiler in a mill, caught by the automatic starting of a carriage, the evidence does not show, as a matter of law, that he was guilty of contributory negligence, or was loitering about as a volunteer, instead of in the performance of his duties, from the fact that, while he was on his way to oil machinery, he was momentarily interrupted by a sawyer who informed him that the machinery was stalled, and that he looked at the friction and advised the sawyer, where it further appears that, after a momentary interruption and show of interest that was natural under the circumstances, he was going on about his duty at the time he was injured.</p> <p>Same — Contributory Negligence — Presumption of Risks — • Choice of Ways. An oiler, on his way to oil machinery, is not guilty of contributory negligence and does not assume the risk, as a matter of law, in choosing a passageway between a carriage and skids, which was usually taken by employees, when he might have gone another way, where each way was in some degree hazardous, and no passageway had been specially provided by the employer.</p> <p>Same — Negligence of Master — Defective Appliance — Machinery in Common Use — Question for Jury. The negligence of the master in using a lever to start a carriage in a mill which was not provided with any guard, clutch, or contrivance to hold the lever stationary and prevent its falling and accidentally starting the carriage, is for the jury, notwithstanding testimony that the machine was as manufactured and advertised and in common use, where that evidence was disputed and there was other testimony that a simple, inexpensive guard in common use would reduce the danger of operation.</p> <p>Appeal — Preservation of Grounds — Exceptions. Error cannot be assigned upon the offering of incompetent evidence and improper conduct of counsel, where no excep