Fries v. American Lead Pencil Co.

McLAUGHLIN, J.

This is an action to recover damages for injuries sustained by plaintiff while employed by defendant in a sawmill, or factory, where lumber was being sawed into small slabs called “pencil boards.” From a judgment in favor of plaintiff, defendant appeals.

The record here discloses the facts recited in the decision upon a former appeal in this case.

(Fries

v.

American Lead Pencil Co.,

141 Cal. 612, [75 Pac. 164].) Other additional and pertinent facts are gathered from the uncontradicted evidence of an older brother, of plaintiff, named Jack, who was working in the factory, and who testified as follows: “Mr. Jones had told me what work he wanted Alec to

do;

that is, to bring the blocks over to me at the machine, and when they were cut up into slabs to tie them up into bundles, ■ and take them away. When we went to the millroom where the saws were, Alec went in with me. I guess there were five or six others there. There was a big circular saw and another saw that were cutting the slabs, with six or seven saws on it all at once cutting the slabs. They were all in the same room and the room was fifty by forty feet, I should judge. There was considerable noise in the room. He was working four or five feet from me. The table where I was at work was three or four feet wide, machine and everything, and two feet to two feet and a half long. The saw was, I guess, a ten-inch saw in diameter. I did not tell him before anything about the danger of the machine, neither did the superintendent, or the manager, Mr. Jones. No instructions were given him at all, nor warning about the danger from the saw. His

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duty was really to work in picking up blocks and binding them, into bundles and piling them up, and to bring me blocks on the other side of the table for sawing. ... I had not got any blocks from the other saw when I called him over. When I ran out of blocks I called him to get some more blocks for me. Alec had no wrork to do about the machine or handle the machine or with the machine. He was working about a foot and a half to two feet from the end of the machine where I was working, about four feet away from me. As I ran the blocks through the machine and made the slabs they fell into a box below. It was Alec’s duty to keep the box empty and pick out the slabs as they were cut up, and put them in bundles, and take them away. The saw was at the side of the machine and there was a fence over it. It is a kind of a protection to a person handling the machine so they would not cut their hands on it. Alee was picking up slabs when I called him over to me. I could hardly talk to him when he was four feet away, and had to have him come over nearer so I could talk to him. I could have talked to him at a distance of four feet if I talked pretty loud. I had to call him twice, and he heard me when I hallooed to him. When he heard me he came over to see me. As he came over, I don’t know as he put his „ hand on the machine, but that was the way it happened. When he came over his hand went down on the machine— put his hand on the machine. In other words, the accident could not have happened unless he put his hand on the saw. It was running all the time, and had been so all the morning. It was perfectly visible to him, as well as anybody else that the saw was running. He was a boy of good eyesight, and the saw was running all right. The sole reason I called him over was to tell him to get blocks. The reason I did not tell him at the distance of four feet instead of calling him over, was because I did not want to halloo to him, and call the other boys’ attention from their work.” The manager, Mr. Jones, testified that he told Jack to bring his brother to work the evening before, and that the next morning he said to him: “You take him and put him to work under you. Instruct him how to tie the bundles up and carry t,nem over and set them up against the wall.” This is denied by both plaintiff and his brother, but all agree that