Schulz v. Johnson , 7 Wash. 403 ( 1893 )

The opinion of the court was delivered by

Dunbar, C. J.

This is an action brought by respondent to recover for personal injuries received by him in appellant’s sawmill, while employed as a sawyer in said mill. The saw was what is called a ‘ ‘ trimmer, ’ ’ and was set in a springing frame attached to the rafters of the mill. It was drawn forward by the operator, and after it had sawed the lumber desired, was drawn back and held in its place by a rope attached to the back of the frame which ran out through the outside of the mill, and to the end of which was attached a heavy weight. It was the breaking of this rope, to which the weight was attached, which allowed the saw to leap forward and do the damage which is complained of.

■ We think this case falls squarely within the rule laid down by this court in Week v. Freemont Mill Co., 3 Wash. 629 (29 Pac. Rep. 215). In that case, it is true, the plaintiff testified that he knew that the rope was old, and that it looked worn and black, which is not the testimony in the case at bar; but in this case plaintiff’s own testimony is, that he did not look at all; that he never examined the rope to see whether it was dangerous or safe. It is true, there is some conflict in the testimony as to whether the rope broke in front of or back of the pulley, but it clearly appears that the rope could have been examined in every part by the slightest effort, and any danger discovered and averted.

The plaintiff was employed to operate this saw. In accepting this employment he accepted the apparent risks incident to the employment, and the wearing out of a rope subjected to the strain to which this rope was subjected, and the extent of which was known to plaintiff, was certainly something which was apparent to the most common understanding. It was in no sense a complicated piece of machinery, with hidden defects, but it was an open attachment to the saw, working on the plainest principles of the attraction of gravitation, which the plaintiff, if he had sufficient knowledge to operate the saw at all, and he assumed that knowledge when he accepted the employment, could fully understand. He evidently did understand it, but was negligently heedless.

Plaintiff was injured on the 13th day of February, 1891. He had been working about the mill since the 4th day of September, 1890, and had been engaged in operating the saw in question since the 1st day of November, 1890, being five and a half months employed in the mill and three and a half months operating the saw. Yet he testified that he never looked at the rope, although it was in sight of him; that he had no time to look at it. When a man is employed to operate machinery, and the machinery is under his control, it is his duty to exercise at least common prudence. It is presumed that the ordinary instincts of self-preservation will prompt a man to do this, and if he does not, he must suffer the consequences of his own negligent acts. In this case, according to plaintiff’s testimony, we think he was grossly negligent, and that such negligence was the direct cause of the injury sustained.

The j udgment will, therefore, be reversed, and the cause remanded with instructions to dismiss the action.

Anders, Stiles, Hoyt and Soott, JJ., concur.