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during the operation of sawing the ventila work should be done, or otherwise warn or tors. One stands at the front of the saw, instruct him. The boys proceeded with the and pushes the bundle along over it. The work until about half past 4 o'clock in the other stands in the rear, receives the bundle afternoon, when the plaintiff was passing a as it comes over the saw, and then passes it bundle over the saw. It had almost reached back to the one in front, who runs it over the the point where the plaintiff was to let go of saw again to cut another row of ventilating it, his hat being pulled over his eyes to proslits. The saw revolves toward the one in tect them from the dust, when Griffin quickfront, who adjusts the bundle to the guide, ly jerked the bundle away, and the plaintiff's and then pushes it over the saw, leaning hand fell upon the saw, whereby it was seforward as the bundle moves from him verely cut and torn, leaving permanent inacross the table. As he pushes, both hands juries. The plaintiff looked up, and Griffin are upon the bundle, and his face is down- still held the bundle. Plaintiff looked at his ward until the top of the saw has cleared the hand, and made some exclamation, when bundle, when the other party, who is called Griffin became frightened and run away. an “off-bearer," takes it as aforesaid. At There is really but little dispute about the this juncture the operator's right hand is foregoing facts, and, in any event, there is immediately over the saw. As the saw emer sufficient evidence to sustain all that is ges from the edge of the bundle next to the above stated. The cause was tried before a operator, it begins to throw dust, and, to pro jury, and a verdict was returned for plaintiff tect his eyes, he pulls his hat down over in the sum of $2,500. Judgment was entered them, and this obstructs his view of the off for that sum, defendant's motion for new bearer. Considerable force is required to trial was denied, and it has appealed. push the bundles over the saw, inasmuch as The errors assigned are that the court rethey range in weight from 30 to 60 pounds.

fused to take the case from the jury at the Care is required cf the off-bearer in taking close of respondent's evidence and again at the bundles away from the saw. If the the close of all the evidence; also that apbundle is jerked from the operator while he

pellant's inotions for judgment notwithstandis in the position above described, his hand ing the verdict and for new trial were deis liable to fall down upon the saw. The nied. These assignments all involve the sufplaintiff had worked now and then around

ficiency of the evidence to establish the liamachinery for several years, but had never bility of appellant. Appellant by its answer done the kind of work above described; he

not only denied negligence on its own part, being but 18 years of age at the time of the

but pleaded contributory negligence on reaccident. On the day of the accident a boy

spondent's part, and also alleged that the acby the name of Griffin applied to the defend cident was due to the negligence of a fellow ant for work. He was about 16 years of age servant, and that respondent assumed the and weighed about 100 pounds. He had nev

risk. The question of contributory neglier before worked in a mill. During the fore

gence under such evidence as was submitted noon of that day Griffin worked taking away

here was clearly for the jury, as has been material from an ordinary ripsaw which the

repeatedly held by this court. Perhaps in an plaintiff was running. The work was sim

ordinary case the court might have concludple, as he merely carried away the stuff as it ed under this evidence that the proximate was ripped. During that time he now and

cause of the accident and injury was the then put sticks on top of the saw which

negligence of the fellow servant, and that it were thrown toward the plaintiff until plain was therefore a mere question of law for tiff asked him to stop it; Griffin apparently the not realizing the danger that might result jury. The circumstances shown in evidence from such amusement. During the after were, however, not usual. Here was a dannoon of that day, the foreman of that depart gerous saw, revolving at great speed, in an ment went to the plaintiff, and ordered him

exposed position. The exposure seeins to to operate the veneer ventilating saw hereto

have been necessary in order to accomplish fore described. The plaintiff objected, say the work as designed. Common experience ing he had never done that work, and did would seem to suggest that about such a dannot understand it. The foreman replied that gerous machine and situation only thoughtthey had a big order, and that the plaintiff | ful persons of mature and deliberate judy. must take up that work. At the same time ment should be permitted to work. In any he ordered the boy Griffin to act as off-bearer event, if young persons without maturity of for the plaintiff; the duties being as hereto mind and without experience are employed, fore described. The foreman said: “You it follows with equal force that they shoull

to be careful, and don't get your mits be carefully shown how the work should be in here. If you do, you are liable to get them done, and fully warned against the dangers whacked off. I got a couple of fingers cut off of failing to follow instructions. Here was ventilating this stuff.” Ile also said to the a young man 18 years of age, who had been plaintiff to be careful, and he ran one bundle employed at other work in the factory. The through the saw. It was testified, however, foreman ordered him to forthwith take that he did not show the boy Griffiu how his charge of this ventilating saw. He remon

strated on the ground of lack of experience, as to the experience and capability of the but he was commanded to proceed at once youth to cope with the particular situation, or with the work. A boy 16 years of age, who to fail to properly and carefully instruct him had never worked in a mill before that day, about his work, or to warn him against imwas ordered to take the position at the other pending danger to himself and others. In side of the saw, and discharge the duties | Kirby v. Wheeler-Osgood Co., 42 Wash. 610, heretofore described. This boy was not in 83 Pac. 62, this court, however, discussed to structed as to his duties, and was not warn some extent the rules for determining whethed of the danger that might result to his er an employer has been negligent in the emworking companion under such circumstan- ployment of children and young persons. ces as have been detailed. That he was not Within what is there said, it was not for the a boy of deliberate or mature mind is not court under the facts in this case to deteronly indicated by his youth, but also by other mine as a matter of law that appellant was facts. In the forenoon of that day he, for not negligent. Under instructions the court amusement, threw sticks upon the ripsaw to properly submitted all questions of neglisee them whirled away. These were thrown gence to the jury, and, the jury having found near the face of respondent, who narrowly that appellant was negligent in the premises, escaped injury therefrom. Again, when re the verdict should be sustained for the fore. spondent was injured, the young boy became going reasons. alarmed and ran away. Such facts indicate The judgment is affirmed. extreme boyishness and lack of judgment or experience sufficient for the responsible posi CROW, MOUNT, FULLERTON, RUDtion he was directed to fill. If it be said KIN, and DUNBAR, JJ., concur. that appellant had not actual knowledge of these boyish traits, it may also be said that such traits may reasonably be expected in all

(47 Wash, 6987 boys of that age, unless by actual experience

SMITII v. CAPITOL BOX CO. certain boys may have demonstrated more (Supreme Court of Washington. Sept. 7, 1907.) serious, thoughtful, and mature judgment. Appeal from Superior Court, Pierce CounPerhaps a person older than respondent ty; W. 0. Chapman, Judge. might have refused to work with such an in Action by Joseph Smith, a minor, by his experienced boy at such a place, but respond- | guardian ad litem, Viola Smith, against the ent was himself a mere boy. He had not Capitol Box Company. From a judgment for done this work before and perbaps did not plaintiff, defendant appeals. Affirmed. realize the danger of such a situation as

R. S. Eskridge and Philip Tindall, for aparose. Moreover, he was required by his

pellant. Govnor Teats, for respondent. employer to act quickly and without time for deliberation. It should not, therefore, be

HADLEY, C. J. This is an action to resaid as a matter of law that he assumed the

cover damages for personal injuries. The risk, and, under such circumstances, we

facts are in essential particulars the same as think it was properly for the jury to deter

those involved in cause No. 6,761, Cox v. Capmine whether appellant was negligent in

itol Box Co. (decided by this court Sept. 7, placing so young and inexperienced a 'person

1907) 91 Pac. 553. The accident occurred in at work at that place, whether it neglected

the same mill, and the plaintiff here was ento properly instruct him how to safely do the

gaged in doing the same kind of work as was work, or to warn both him and the respond

the plaintiff in the case cited. For a descripent of the incidental danger; and also

tion of the plaintiff's situation as an operawhether the injuries of the respondent were

tor of the ripsaw cutting ventilating slits in primarily traceable to such negligence. The

the bundles of veneer for use in grape boxes, court submitted these questions to the jury,

we refer to the statement of the facts in the and the verdict established the negligence of

opinion in the cause mentioned. In the case appellant.

at bar the plaintiff, who was operating the Neither party has cited in the briefs any ventilating saw, was at the time about 16 authorities touching any question involved. years of age, and his off-bearer, a boy by the The facts are such as lead us into the realm

name of Haviland, was somewhat older, but of fundamental principles which operate, or at the time of the accident he was not yet should operate, between men. Legal prece 17 years of age. Haviland quickly jerked dents are not necessary where the conscien the bundle of veneer away just as it was ces of ordinary and reasonable minds univer about to clear the saw, and the plaintiff's sally accept certain principles as fundamen hand dropped from the bundle against which tally right and just. Such minds intuitively it was pressing and fell upon the saw, wlierebelieve that if an employer assumes to em by it was severely cut and injured. The ploy children or persons of extreme youth and plaintiff had during his employment been inexperience about dangerous machinery, er most of the time engaged in other work, and en if the act of employment in a given case is up to the time he was hurt he had operated not itself negligence, it is at least negligence the ventilating saw perhaps as much as one for the employer not to first inform himself whole day. He and Haviland had been work

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.

ing together at the saw but a short time when the accident happened. There was evidence tnat 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 (ause is aflirmed.


(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 seryant, 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. 3. SAME-CONTRIBUTORY NEGLIGENCE.

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 judy.

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 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 siw frame toward him by a handle attached for that purpose. This dragged the saw toward the operator, and, by its circular motion, it (ut 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 judg. ment 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 instruciion in respondent's: favor. Under the testimony, all questions of negligence or contributory negli

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gence were for the jury, and each party was and experience, leading such an one to apentitled to have those questions submitted to preciate the dangers of the situation. It is the jury by correct instructions, fully and true in another instruction reference is made clearly defining the law applicable to the to the age, experience, and capacity of appelfacts as claimed by him. Somewhat exten- ! lant, and that respondent should have taken sive instructions were given, and to set forth i these into consideration when instructing apall the criticised instructions in hiec verba · pellant; but no standard is specified for such with a discussion thereof would require more ; instructions, except that that degree of care space than the importance of the subject : should be exercised which an orılinarily pruwarrants. The respondent urges that, when dent person would exercise under like cirthe instructions are read as a whole, the ob cumstances. We think, in view of the boyjections to segregated parts thereof are over- ; hood of appellant and of his necessarily limcome. In some respects such would doubt ited experience at the age of 15 years, that he less be true in some cases; but, under the was entitled to more specific statement of the particular facts of this case, we think that, duties resting upon the employer of children even when the instructions are all considered than the mere general statement applicable as a whole, there are some parts that way to the ordinary cases of adult persons. have been confusing and misleading to the "Complaint is further made of a series of injury to the possible prejudice of appellant. structions, all to the effect that the conduct Without urdertaking to take up in detail all of the deceased, who was a girl of 13, was the subjects assigned as error, we will refer to be measured by what an ordinarily cauto certain ones only. The following instruc tious, careful, and prudent person would have tion was given: "Or, if you should find that done under the same circumstances.' It is both the plaintiff and defendant were negli said that herein no allowance is made for gent, and the plaintiff's negligence contrib the fact that the deceased was a minor child, uted proximately to the happening of the in and that the jury might well have been misjury, then the plaintiff cannot recover, and led into believing that the care, caution, and your verdict must be for the defendant." It

prudence required of her were the care, cauwill be seen that no reference is made in this

tion, and prudence which the ordinary adult instruction to the standard of reasonable and person would have exercised under the same ordinary care as being all that was required circumstances. Of course, as was said in ot appellant. The instruction might easily Studer v. S. P. Co., 121 Cal. 100, 53 l'ac, H2, have been understood by the jury to mean 06 Am. St. Rep. 39: 'The same act which that, without regard to any question of care, would be negligence in an adult may not be if appellant's conduct in any way contributed such if done by a child; but a child is reto the injury, it became negligence and pre quired to exercise the same degree of care cluded his recovery. The rule is, however, that would be expected from children of his that. to constitute contributory negligence, age, or which children of his age ordinathere must be want of ordinary care, having rily exercise. *

Children, as well as in view all the circumstances of the case and adults, should use the prudence and disc:resich lack of ordinary care must contribute to tion which persons of their year's ordinarily the injury as an efficient cause thereof. i

have. The law imposes upon minor's the Am. & Eng. Enc. of Law (

ZE.) 373, 380. duty of giving such attention to their surA part of the text upon the last citel pige. roundings and care to avoid dangers as may supported :n tlie footnote by the citation of fairly and reasonably be expected from permany authorities, is as follows: "Vor will sons of their age and capacity. In this rethe fact th:ut the person injured proximately gard, also, to avoid the possibility of misuncontributed to his own injury by liis con derstandings, the instructions could profitably duct constitute contributory negligence, if he be made more explicit." Quill v. Southern was not guilty of a want of ordinary care." Pacific Co., 73 Pac. 9991, 111) Cal. 268. With The following appears in the instructions: respect to the difference between the general "But if the defendant should give the plain rules applicable in cases of adults and chiltiff reasonable instructions as to the use of dren, see, also, Kirby r. Wheeler-Osgood Comtools and inachines, and the plaintiff should pany, 12 Wash. 610, 85 Pac. 62. not observe such instructions, and should re The following instruction was given: "It ceive an injury in consequence, the defend is also the law that the plaintiff assumes all ant would not be liable therefor and the known dangers in and about his duties, and plaintiff could not recover." The above fails if there were defects or dangers in and about to call the attention of the jury to the fact the machinery plaintiff was working at, and that in determining what were reasonable in the plaintiff knew, or in the exercise of orstructions to appellant they should take into dinary care should have known, of such deconsideration all the circumstances, particu fects and dangers, then he assumes all risk larly the boyhood of appellant and the extent of danger from such defects, and it he is inand chara ter of his experience; that to jured thereby the defendant would not be liamake such instructions reasonable they must ble and the plaintiff cannot recover; and have been such as would have been uneler where the defects, if any, are known and apstood by al ordinary boy of appellant's age parent, the plaintiff assumes all danger there


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, 88 954, 977.] 2. SAME-PLEADING-ALLEGATION OF NEGLI. GENCE.

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.

frum, 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 apprebend, 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 neg. ligent in any one or more of the respects alleged in the complaint, and which caused the injury. In other words, where the plaintiff hinself 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 hare exercised under all the circumstances. The 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 furtber discussion is not necessary, in view of what has been hereinbefore said. The judgment is therefore reversed, and the cause remanded, with instructions to grant a new trial.

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FULLERTOV, 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, work. ing 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 eacb 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

CROW, MOUNT, and DUNBAR, JJ., concur.

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

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