Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1890-02-14

dropped The knee. ne plalnuH Sarl-
son, at that moment, was passing un-
der the projecting room where he
could not see the window, nor the
men see him, and he did not hear the
warning; so as he emerged from the
overhanging room, he was struck by
the falling knee, and severely injured.
This action was brought against the
proprietor OF the mill, Sayward, to re-
cover damages for the injury, on the
ground that it was the negligence of
the defendants servant, in throwing
the knee from the window that caused
it.
The material portions of the COM
plant here involved were as follows:
THAT at all the times hereinafter
mentioned plaintiff WAS employed by
defendant as a workman in said saw
mill i'll the capacity of tallyman.
That on the 29th day of March, A.
ID. 1885, the plaintiff then being in the
employ of defendant in the capacity
OF tallyman as aforesaid in said saw
mill, having Il necessity to go to the
water closet situate under said saw mill,
left his work and went toward said
water-closet by the way usually travel
ell by himself and other workmen cm-
ployed by defendant in said saw mill.
That in going from his work to said
water-closet, by the way aforesaid, the
plaintiff was compelled to pass direct
ly under the fire room of said saw mill,
and, while passing under said window,
certain workmen employed by the de-
fendant as carpenters and there en-
gagged in repairing the bark Tidette,
near said mill, by the order and direc-
ton of the superintendent having
charge and control of said carpenters,
for and in behalf of defendant, without
giving notice or warning whatever to
this plaintiff, threw out of said window
a ships knee, weighing four hundred
pounds or more, and the same fell a
distance of sixteen feet, striking this
plaintiff, who was then passing under
said window as aforesaid, upon the
head, arm and shoulder, severely
bruising and wounding him, and rem
dering him senseless, and plaintiff re-
mained in state of insensibility for
the space of ten hours and was con-
fined to his bed by reason of said in
jury for period of one day.
That said accident happened and
said injuries were received wholly on
account OF the carelessness and negli-
gence of the said superintendent, hav-
ing charge and control, for and in be-
half of the defendant, of the carpen-
ters employed by the defendant as
aforesaid, and through no fault or
negligence on part of plaintiff"
The defendant being nonresident,
plaintiff endeavored to obtain jurisdic-
ton OF his person and property by at
taching the latter and making service
of the summons by publication.
Numerous motions were made in
the court below by the defendants
counsel, appearing specially therefor,
for the purpose of preventing the
court from assuming jurisdiction upon
the attempted service made, and the
denial of these motions is here assigned
rs error. But whatever weight these
motions may have had at the time, We
are satisfied that a subsequent motion
to open default which had been en-
tered, which was not upon y limited
or special appearance, as well as the
subsequent answer, waived all objec-
tions to the Jurisdiction and brought
the defendant fully before the court.
The answer of the defendant was a
general denial. The cause was tried
upon the issues thus made and there
was verdict and judgment for the
plaintiff. ..4tAa .,
Upon the plaintiff resting his case,
the defendant moved for non-suit
and for dismissal of the action, upon
the following grounds, viz:
l. That the complaint did hot
state facts sufficient to constitute
cause OF action.
ii. That plaintiff had failed on the
proofs to make out the cause of action
stated in the complaint. . /
III. That on the proofs, plaintiffs
injuries were caused by his own negli-
gence.
Nv. That on the proofs, plaintiffs
injuries were caused by fellow ser
want of plaintiff.
The court denied the motion, and
error is assigned here, upon the de-
nial.
Upon these errors We are of the
opinion:
l. That the complaint was sufti-
cient.
2. The second ground of the mo-
ton was based upon the testimony
which showed that plaintiff was in
jured while on his way to his work in
the morning, and before he had COM
menced work for the defendant for
the day, instead of under the circum-
stances alleged in the third and fourth
of his complaint, quoted
above. But we do not look upon the
facts proven and those pleaded as ma
terially varying. The defendent could
not have been surprised, and an
of the complaint to ac-
cord with the facts would have been
allowed Of course.
3. The third ground for non-suit
was taken in view of certain facts
which we have not yet stated in full.
Plaintiff, as above set forth, was on
Saturday, assigned to go to work on
the next Monday morning, at eight
O'Clock, at the scantling saw, in the