(63 Wash. 600)

YOUNG v. ALOHA LUMBER CO. (Supreme Court of Washington. June 22, 1911.)

1. MASTER AND SERVANT (§ 281*)-SAWMILL EMPLOYÉS-INJURY-CONTRIBUTORY NEGLIGENCE-EVIDENCE-WEIGHT.

Finding that a lumber mill employé, injured while operating a saw, was guilty of contributory negligence, held against the evidence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. 8 281.*]

2. TRIAL (§ 140*)-PROVINCE OF JURY-CREDIBILITY OF WITNESSES.

The credibility of testimony not inherently incredible is for the jury.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. § 140.*] · 3. MASTER AND SERVANT (§ 209*)-SAWMILL EMPLOYÉS-ASSUMPTION OF RISK.

A lumber mill employé does not assume the risk of injury from an insufficiently guarded saw, though properly instructed and possessing knowledge of machinery, if a reasonably safe guard was practicable, and if the injury would not have resulted had such guard been used.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 552, 553; Dec. Dig. § 209.*]

4. MASTER AND SERVANT (§ 285*) - SAWMILL EMPLOYÉS-INJURY-JURY QUESTIONS.

In an action for injury to a lumber mill employé, whether a guard on a rotary saw was reasonably safe, whether a reasonably safe guard was practicable, and whether want thereof caused the injury, held, under the evidence, a jury question.

[Ed. Note.-For other cases, see Master and

Servant, Cent. Dig. §§ 1002-1053; Dec. Dig. § 285.*]

5. MASTER AND SERVANT (§ 209*)-SAWMILL EMPLOYÉS-ASSUMPTION OF RISK.

Whether assumption of risk can be invoked as a defense to suit for injury to a lumber mill employé while operating a saw depends upon whether the employer made a bona fide effort to protect the operator by a guard commonly used for that purpose, whether the accident could reasonably have been foreseen by the employer, and upon the employé's knowledge and experience.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 552, 553; Dec. Dig. 8 209.*]

6. MASTER AND SERVANT (§ 276*) — SAWMILL EMPLOYÉS - INJURY - CAUSE EVIDENCE -SUFFICIENCY.

Evidence held to warrant a finding that a lumber mill employé, injured while operating a saw, was injured by his hand coming in contact with the unguarded front of the saw on his being touched and loudly accosted by the fore

man.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 950-976; Dec. Dig. § 276.*]

7. TRIAL (§ 165*)-MOTION FOR NEW TRIALCONSIDERATION.

Motion for nonsuit requires consideration, not only of the literal statements in evidence but all of the justifiable inferences deducible therefrom in plaintiff's favor.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 373, 374; Dec. Dig. § 165.*]

8. MASTER AND SERVANT (§ 121*)-DANGEROUS MACHINERY-FAILURE TO GUARD-NEG

LIGENCE.

A lumber company is negligent as a matter of law in failing to guard with reasonable safe

ty a saw which could be so guarded without interfering with its efficiency.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. § 121.*]

Department 2. Appeal from Superior Court, Chehalis County; Mason Irwin, Judge. Action by H. G. Young against the Aloha Lumber Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Dan Pearsall and A. Emerson Cross, for appellant. Morgan & Brewer, for respondent.

ELLIS, J. This is an action brought under the factory act for damages for ersonal injury claimed to have been received by the appellant from an insufficiently guarded ripsaw in respondent's mill. It appears from the evidence that on or about February 1, 1910, appellant was engaged, through an employment agency at Aberdeen, to work in the respondent's millyard at Aloha, Wash., and on the 2d or 3d of February, 1910, when he presented himself for work, he was informed by the respondent's manager, a Mr. Dole, that there was then no work for him in the yard, but that he desired appellant to work at a certain ripsaw in the mill. The manager inquired of appellant whether he was familiar with the operation of such a saw, and was informed by appellant that he was not. The manager then took appellant to the ripsaw, and demonstrated the operation of sawing by starting a board with his hand, and then shoving it through the saw with a stick. Appellant had never worked in a sawmill before, and knew nothing of the operation of saws, but had run stationary and donkey engines for some time. He testified that he at once began work, operating as he had been directed by the manager, first starting the board with his hand, and then shoving it through with a stick about fifteen inches long; that he had worked about an hour and a half, when the mill foreman came up, and, putting his hand on the appellant's left shoulder, hallooed at him "that this piecework has to be done fast." Appellant's testimony as to how he was injured is as follows: "Q. What did you do? A. I turned around and looked in-turned around and looked at his face. Q. What position were your hands? A. They were right in front of the saw, possibly a foot. Q. What did you have in your hands, if anything? A. I had a stick. Q. What were you doing with this stick at the time, Mr. Young? A. I was starting to shove the board through the saw. Q. Had this board gone all the way through the saw at the time-at the time that you turned around to see the foreman? A. No, sir. Q. Do you recall which shoulder he hit you on? A. I think it was my left shoulder. Q. Which way did

you turn, to the left or to the right? A. To the left. Q. Which hand-which was forward on this stick, your left or right hand? A. My left hand. Q. Did you have anything on your hand? A. On the stick?" After being questioned concerning a glove which was on his hand at the time, his examination continued: "Q. What did you do-how did you know that your hand was in the saw? A. Because I felt like there was an electric shock running through my arm. Q. What did you do when you felt this shock that you speak of? A. I looked at my hand. Q. And in what condition did you find it in? A. It was very bloody at that time. Q. As to its condition, as to whether or not it was all there or not. A. It was not all there. Q. What part was gone, if any? A. That finger. Q. Where was the portion of that finger or did you know where that portion of that finger was? A. It laid on the front of the table. Q. Were any other fingers or any other portion of your hand cut at the same time? A. Yes, sir. Q. Tell the court and jury what portion of your hand and fingers were cut. A. This middle finger was cut in two, and this part here was cut half through and the joint and thumb split up." Appellant f her testified that he did not attempt to brush spalts or splinters away from the saw with his hand, and that he did not get injured in that manner.

The saw was guarded by a board along the right side and another about three inches wide over the top of the saw, at right angles to the first board and about three inches above the saw. The saw projected, appellant says, more than 24 inches through the talle on which the boards were placed for sawing. The front of the saw and the left side above the table were exposed to the operator. A picture, introduced in evidence by respondent on cross-examination of the appellant, shows a piece of leather, or covering of some kind, over a part of the front of the saw, but appellant said he did not remem er seeing it there at the time of the accident.

One J. S. Coxey, called as an expert for appellant, testified that in years past he had worked in sawmills for about five years in all; that he had had about three years' experience with table saws like a ripsaw or resaw; that he had made guards for several ripsaws and bad seen several made by other people; that he was acquainted with the operation of ripsaws and resaws; that he had been in recent years engaged in various lines of business and employment, and at times in inventing surdry devices, among them models for guards for wood-working machives. The trial court holding him sufficient's qualified as an expert, he testified that the guard above described would be reason all safe to guard against spalts or anything thrown against the operator's body or face by the saw, but not as a protection for the hands. Being asked what in his

opinion would be a reasonably safe guard for a ripsaw, having due regard to the uses for which it is intended and the efficiency of its operation, he testified, in effect, that a reasonably safe guard for such a saw would be an adjustable hood, suspended on a screw or bolt over the saw, in such a way that it could be raised or lowered according to the thickness of the boards to be sawed, thus protecting the operator from injury at every point except the space through which the boards would pass; that such a guard would not. interfere with the operation of the saw in the least, and that, if such a guard had been used, it would have been impossible for the appellant to be injured. He further testified that he had had such a guard of his own some 12 years ago, and had seen one in use on a ripsaw or resaw the day before the trial, in the Aberdeen Manufacturing Company's plant at Aberdeen.

Such is the substance of appellant's evidence. At its close, respondent moved for a nonsuit, challenging its sufficiency on various grounds. The court, in sustaining the motion, said: "Now, gentlemen, I think I will have to sustain the motion. There is no evidence showing just how this man did get his hand hurt. The only way that I can gather from the evidence that he did get it hurt was that he says that he had his hand on the board that was going through the saw, the left hand, and that the foreman touched him on the shoulder to attract his attention and that when he was looking at the foreman, in speaking to the foreman, he felt his hand hurt. Now, it seems evident to me, gentlemen, that he simply held his hand on the board, as it passed through into the saw, too long. It slipped into the saw, his finger, before he was aware of it. Any guard that might have been on there that would permit a board to run through there would have allowed the same thing. Anything, any guard, would have allowed his hand to go in there the same way, and, for that reason, that it could not have been owing to the guard, because any guard that could have been placed there that would have allowed the saw to operate would have allowed his hand to go under the guard. It was simply one of those accidents that would have occurred from his inattention. If he had stopped and took his hand off while he allowed the foreman to speak to him, he would have not been hurt. guard that could have been placed there could not have prevented his hand from slipping into the saw when he had hold of the board, which was evidently the way he was hurt. The evidence shows that he was properly instructed as far as that is concerned, and shows that he was not experienced in the use of saws, but also shows that he was an experienced man and had been around machines and had run donkey engines for some time, so that his education in that way would have been sufficient for him to under

As I see it, any

[1] The formal judgment of dismissal recites that the motion was sustained "for the reason that there was no evidence showing just how the plaintiff got his hand hurt, and that it was not owing to the absence of a reasonable safeguard that plaintiff was injured." It is evident from the court's re marks that he based his decision largely upon the assumption that appellant was guilty of contributory negligence by placing his hand upon the board and allowing it to follow the board into the saw. This assumption is not only not supported by any evidence, but is contrary to the evidence. Appellant, who was the only person who testified as to the accident, said that he had his hand upon the stick pushing the board, and there was no evidence that he had his hand upon the board at the time of the injury.

[2] The court may not have believed the witness, but, as there was nothing inherently incredible in his statement, its credibility was for the jury.

[3] The court seems also to have held that appellant assumed all the risks of working at the saw, because he had been properly instructed and knew something of machinery. This was not ground for a uonsuit, if, in fact, the guard in use was not a reasonably safe one and a reasonably safe guard was practicable, and if, in fact, the appellant would not have been injured had a reasonably safe guard been used.

[4] These were questions for the jury. Hall v. West & Slade Mill Co., 39 Wash. 447, 81 Pac. 915; Noren v. Larson Lumber Co., 46 Wash. 241, 89 Pac. 563; Thomson v. Issaquah Shingle Co., 43 Wash. 253, 86 Pac. 588; Campbell v. Wheelihan-Weidauer Co., 45 Wash. 675, 89 Pac. 161; Rector v. Bryant Lumber & Shingle Mill Co., 41 Wash. 558, 84 Pac. 7; Vosberg v. Michigan Lumber Co., 45 Wash. 670, 89 Pac. 168; Johnson v. Far West Lumber Co., 47 Wash. 492, 92 Pac. 274; Erickson v. McNeeley & Co., 41 Wash. 509, 84 Pac. 3.

[5] Whether assumption of risk could have been invoked successfully as a defense was dependent upon evidence as to whether the respondent had made a bona fide effort to protect the operator with a guard commonly in use for the purpose, and whether such an accident could reasonably have been anticipated by the respondent, and upon the knowledge and experience of the appellant. These are all matters of defense. Johnson v. Northern Lumber Co., 42 Wash. 230, 84 Pac. 627. [6] Nor do we think the granting of the nonsuit warranted on the ground, that the evidence failed to show "just how plaintiff got his hand hurt."

[7] Upon challenge to the sufficiency of uncontradicted evidence by motion for nonsuit, it is the duty of the court to consider, not alone the literal statements, but all of the

R. Co., 4 Wash. 38, 29 Pac. 942; Johnson v. Southern R. Co., 122 N. C. 955, 29 S. E. 784; Shay v. Richmond & Lancaster Turnpike Road Co., 64 Ky. 108; Hanley v. California Bridge & Constr. Co., 127 Cal. 232, 59 Pac. 577, 47 L. R. A. 597; Volosko v. Interurban Street Ry. Co., 113 App. Div. 747, 99 N. Y. Supp. 484; McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 701; Lee v. Publishers: George Knapp Co., 137 Mo. 385, 38 S. W. 1107.

There are only three ways suggested in the briefs or in argument in which it was possible for the accident to have happened. Either by appellant placing his hand upon the board and allowing it in that way to pass into the saw, or by his attempting with his hand to remove spalts or splinters from near the saw, or by his hand coming in contact with the unguarded front of the saw when, being touched and loudly accosted by the foreman, he turned suddenly to the left. The first two of these are negatived by the evidence. The almost necessary inference, therefore, is that the accident happened in the third way. In fact, that is the fair import of his evidence, even without eliminating other possible ways, though appellant did not actually see, and hence did not say, just how his hand got hurt. There was no such element of mystery in this case as is found in Dahlstrom v. Inland Box Mnfg. Co., 112 Pac. 345, recently decided by this court. In that case the claim that the saw was insufficiently guarded was abandoned on the appeal. In Hansen v. Seattle Lumber Co., 31 Wash. 604, 72 Pac. 457, the plaintiff was alone at the time of the accident. He testified that he did not know how it happened, and made no effort to explain any of the circumstances. That case is not controlling on the facts here presented. It was decided before the factory act was passed. There was no evidence from which it could be inferred that any negligence of the defendant caused the injury. When from all the circumstances developed by the evidence it becomes reasonably apparent that the injury occurred because of an insufficient guard, then, in the absence of contradictory evidence, a nonsuit should not be granted for lack of direct evidence showing just how it occurred. There is no valid reason why the same rule should not apply in such a case, as in cases where the master has failed to instruct the operator and warn him of the danger. tact is involuntary or accidental, the (in)ability of the party to fully explain how the accident happened should not be deemed conclusive against him." Von Postel v. Lake Sammamish Shingle Co., 51 Wash. 261, 98 Pac. 665; Wikstrom v. Preston Mill Co., 48 Wash. 164, 93 Pac. 213.

Where the con

[8] We think the court also erred in holding that there was no evidence that it was owing to the absence of a reasonably safe

er suggested causes were eliminated. There was evidence tending to show that the accident could not have happened had a reasonably efficient guard been used. There was also evidence that such a guard as that used was not reasonably safe, and that a reasonably safe guard could have been used without in the least interfering with the efficient operation of the saw. In such a case, in the absence of any evidence to the contrary, a defendant is chargeable with negligence as a matter of law. Hansen v. Seattle Lumber Co., 41 Wash. 349, 83 Pac. 102; Erickson V. McNeeley & Co., 41 Wash. 509, 84 Pac. 3; Vosberg v. Michigan Lumber Co., 45 Wash. 670, 89 Pac. 168; Adams v. Peterman Mnfg. Co., 47 Wash. 484, 92 Pac. 339; Newcomb v. Puget Sound, etc., Boiler Works, 54 Wash. 419, 103 Pac. 456; Whelan v. Washington Lumber Co., 41 Wash. 153, 83 Pac. 98, 111 Am. St. Rep. 1006; Rector v. Bryant Lumber Co., 41 Wash. 556, 84 Pac. 7; Benner v. Wallace Lumber Co., 55 Wash. 679, 105 Pac.

145.

The judgment is reversed and the cause remanded for a new trial.

in the state. At the same session of the Legislature an act creating a tax commission was entitled "An act to provide for the assessment passed (Laws 1905, c. 115). In 1907 an act of the operating property of railroads" (Laws 1907, c. 78), giving the tax commissioners power to fix that assessment, with the right to examine books, take testimony under oath, and compute the market value of the railroad property. Later, in the same session, the railroad commission act was amended; the commission being directed to ascertain the total market value of railroad property so as to make up a reasonable schedule of freight and passenger rates, appeals being allowed from its findings. Section 12 of the railroad commission law as amended (Laws 1907, c. 226, § 5) provides that the findings of the commission shall be admissible in evidence in any proceeding in which the public, railroad, or express company is interested, and such findings shall be conclusive evidence of the facts stated therein. The railroad commission found the value of relator's property, and fixed rates accordingly, and the tax commission assessed relator at a higher value. Held, that as the railroad commission law had been passed last, and as the railroad commission has greater powers, it having power road property, its finding is conclusive upon the to determine the actual physical value of railtax commission, but the two acts are not necessarily repugnant, the tax commission having power to act until the railroad commission makes its findings, especially in view of Acts

(63 Wash. 535)

STATE ex rel. OREGON R. & NAVIGATION CO. v. CLAUSEN, State Auditor, et al. (Supreme Court of Washington. June 10, 1911.)

GEN

1. STATUTES (8 161*)-CONSTRUCTION ERAL RULES-REPEALS BY IMPLICATION. Repeals by implication are not favored; and, where two or more statutory provisions relate to the same subject-matter, they should be construed, if possible, so as to give effect to all.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 230-234; Dec. Dig. § 161.*] 2. STATUTES (§ 2254*)-CONSTRUCTION-GENERAL RULES-SIMILAR STATUTES.

The rule that statutes in pari materia should be construed together applies with peculiar force to statutes passed at the same session of the Legislature, and such statutes should, if possible, be construed so as to harmonize and give effect to the provisions of each, but, if that be impossible, a specific statute will override the general one, and of two inconsistent statutes that will prevail which took ef

fect at the later date.

ERAL RULES-INTENTION OF LEGISLATURE. A statute should always be construed with reference to its object, so that the intention of the Legislature will be given effect.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 262; Dec. Dig. § 184.*] 4. TAXATION (§ 390*)-VALUATION OF RAILBOADS RAILROAD COMMISSION.

In 1905 an act was passed creating a railroad commission, and section 12 of that act (Sess. Laws 1905, c. 81) provides that the commission shall ascertain the amount of money expended in the construction of every railroad

commission act, and providing that the findings of the commission shall be admissible in evidence in any action or proceeding in which the state or its officers, or any county, municipality, or other body politic, and the public service corunder the provisions of this act or otherwise, poration affected, is interested, whether arising shall be conclusive evidence of the facts stated, and that its valuation shall be taken as the true value for purposes of taxation.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 390.*]

5. STATUTES (§ 178*)-CONSTRUCTION-LEGISLATIVE CONSTRUCTION.

The courts are not at liberty to speculate upon the intent of a statute where the Legislature has put its own construction on the statute by a later enactment.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 257; Dec. Dig. § 178.*]

6. CONSTITUTIONAL LAW (§ 229*)-EQUAL PROTECTION OF LAWS-TAXATION OF PROPERTY. full value of its property, may complain that it A railroad, though not assessed upon the is denied equal protection of the laws where all other railroads are assessed standard. upon a lower

[Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 229.*]

7. TAXATION (§ 490*)-VALUATION OF RAILROAD PROPERTY-FINDINGS OF TAX COMMISSION-COLLATERAL ATTACK.

Upon collateral attack, a finding of the state tax commission as to the valuation of

railroad property will be presumed to have been supported by evidence.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 872, 873; Dec. Dig. § 490.*] 8. TAXATION (§_493*) — VALUATION BY TAX COMMISSION-REVIEW-PRESUMPTIONS.

Upon direct appeal a finding of the state tax commission as to the valuation of railroad property will not be presumed to have been supported by evidence not appearing in the record.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 876-883; Dec. Dig. § 493.*]