Vosberg v. Michigan Lumber Co.

Fullerton, J.

The respondent was employed by the appellant to work as oiler and engineer in its sawmill at Aber *672 deen. A part of Ms duty was to oil a certain gang edger, then in operation in the mill, which was connected with the main shaft by friction wheels in such manner as to enable it to be started and stopped without interfering with the operation of the principal machinery. The edger had bearings which could not be reached by the oiler with safety while it was in motion, and it was customary to stop it before proceeding to oil it. On November 1, 1905, the respondent, in the performance of his duty, approached the edger to oil it at the usual time. He first stopped its motion by turning the lever which separated the friction wheels, and then leaned over certain cogwheels used to connect different parts of the edger, and proceeded to oil the inner bearings. The edger started while he was in that position, and the cogwheels caught Ms left arm and severely crushed and lacerated it. There was no guard over the cogwheels, although it is conceded that they could have been guarded without interfering with the successful operation of the edgér. The respondent brought this action under the factory act of 1905, alleging that the appellant was negligent in failing to guard, as required by that act, the gearing causing the injury. The appellant answered the complaint, denying negligence on its part, and pleading affirmatively a compliance with the factory act, and the receiving of a certificate of inspection in accordance with its provisions. A reply was filed putting in issue the new matter in the answer, and on the issues thus made a trial was had, which resulted in a verdict in favor of the respondent for $1,750, on which the judgment was entered from which this appeal is taken.

The appellant first contends that the respondent assumed the risk of injury from the exposed gearing, and that the court erred for that reason in refusing to sustain its demurrer to the complaint, and motion for nonsuit made at the conclusion of the introduction of evidence. The appellant argues, that since the cogwheels on which the respondent was *673 injured were not dangerous except when in motion, and since his duties did not bring him in contact with them while they were in motion, he must be held to have assumed the risk of injury from any cause other than a defect resulting from negligence in the means provided for starting and stopping the running of the machine; that the means of stopping the machine is of itself a suitable and proper guard against accidents from its exposed gearing, and that the law does not require more than one such guard. The case of Johnston v. Northern Lumber Co., 42 Wash. 230 , 84 Pac. 627 , is cited as maintaining the contention. But that case we think is clearly distinguishable from the one at bar. There the employer had provided a guard which had been in use and had served as an adequate protection for many years, and had been used for three years without complaint by the injured employee, who was an experienced person. The accident was unexpected and unusual, and one not readily anticipated even by experienced millmen, even if it could have been anticipated at all. It was held that the law only required the employer to provide guards sufficient to protect against such dangers as reasonably intelligent and experienced millmen would anticipate, and inasmuch as the millman had done so in that instance, he could not be denied the right to set up, in an action brought to recover for an injury occurring in spite of the guard, the defense of assumption of risk. In the case before us, however, there was no guard at all over the gearing which caused the respondent’s injury. There was nothing unusual about the accident. It is no uncommon thing for clutches, friction wheels, and other forms of gearing used to connect machinery of the kind in question here to the motive power, to catch unexpectedly and start the machinery in motion without any very apparent cause, or at least for no cause than can be more than surmised after the event happens. And it is we think too much to say, as a matter of law, that the accident was one that could not have *674 been reasonably expected or anticipated 'by ordinarily careful and prudent men engaged in the business of operating such machinery. The question whether the accident should have been anticipated and the machine guarded was, therefore, one for the jury, and the court very properly submitted it to them. Erickson v. McNeeley & Co., 41 Wash. 509 , 84 Pac. 3 .

The appellant next contends that the court should have granted his motion for nonsuit because it appeared that it had caused its machinery to be inspected by the commissioner of labor, and had procured from the commission a certificate to the effect that it had fully complied with the factory act. But the statute itself (Laws 1905, p. 164, § 7) makes the certificate only prima facie evidence of a compliance with the provisions of the act, and the court performed its full duty in this respect when it charged the jury to the effect that the certificate was prima facie evidence of a compliance with the statute, and that the burden was on the respondent to overcome that evidence by showing that the gearing causing the injury was not reasonably safeguarded.

It is contended further that the court erred in refusing to give certain requested instructions, but these in so far as they were material were covered by the instructions given.

The judgment is affirmed.

Hadley, C. J., Dunbar, Mount, and Crow, JJ., concur.