Olsen v. Gray

HENSHAW, J.

Plaintiff sued defendants to recover damages for personal injuries sustained by him while in their employ. Trial was had before a jury and plaintiff recovered. From the judgment which followed and from the order denying defendants’ motion for a new trial they appeal. Appellants contend that plaintiff was injured through one of the ordinary risks of the employment in which he was engaged, and that for such injury so received they are not responsible.

[113]

Respondent’s answer is, that he was a young man, inexperienced in the work to which he was put, that he was set about his task without instruction or warning as to the danger which he was incurring, and moreover, that the appliance furnished for the work was inadequate and unsafe.

Plaintiff was a young man about twenty years of age, and had taken employment to help load a lumber vessel with shingles. In the language of the first officer of the ship, he was a “green hand,” a “greenhorn,” and could not talk English very well. His first employment was in the hold of the vessel, placing the bundles of shingles. Later in the day he was ordered on deck and put to work shoving bundles of shingles across a table into an open hatchway. The table was about three feet wide, one end of it was placed on the railing of the steamer, and it ran out across the hatchway and rested on a bundle of shingles on the other side of the hatchway. It was, according to the testimony of the first officer of the ship, a permanent piece of work which was kept and used on board the ship all the time. The shingles from the landing came down a slide or chute onto this table, and were pushed across it into the hold. The table w^s without side-guards or flanges to hold the bundles in place. Plaintiff was called by the captain from his work in the. hold and, without any warning or instruction as to the character or danger of the work, was told to go up and shove shingles across the table. He had been engaged in this work about ten minutes, when the swaying of the ship started the bunches of shingles rapidly down the chute, and one of them leaving the table struck the defendant while he was pushing shingles on toward the hatchway, and knocked him from the deck to the bottom of the hold, a distance of twelve or fourteen feet.

Under the evidence, it is at least debatable, and was therefore a matter for the jury, whether the perils and risks of the employment were so obvious to the eye and to the understanding that there was no occasion for the employer to instruct his servant in putting him at this new task. It appears that this was the first time the plaintiff had ever been engaged in this particular operation. But even resolving this question in favor of appellant, it was certainly for the jury to say, under the evidence submitted, whether or not the appliance furnished by the defendants through their ship’s