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

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at some time between seven and eight
o'clock, plaintiff entered one of the
mill yard gates and went to the fur
mace room, across the open space from
| the mill, to have social chat with
the fireman, intending to go thence
by another route to his work, in time
to begin at the hour. AT the rear,
and ON the ground floor of the mill,
there were water closets built for the
accommodation of the men, which were
approached from the upper floor, by n
stairway at that end of the building.
The most direct way to reach these
closets from the furnace room was
across the yard and under the mill /;
but for those at work on the upper
floor the proper way was along the
mill to the stair at the rear At the
house where plaintiff lived, there was
accommodation of the same kind
which he could have used before going
to the mill. But after remaining Il
short while in the furnance room,
plaintiff decided to 90 to the mill
closets and thence to his work, up the
back stairs. He went across the yard,
not in direct line or path, but in
such course that he brought himself
alongside the mill, SO that in passing
thence toward the back end and the
closets, he walked under the project
ing room where Beaton and the others
were with the knees, coming out again
from beneath the room at the precise
moment when the first knee dropped,
and struck kim. Had he visited the
closet at his own house, or not gone to
the furnace room, or walked in the
most direct line across the yard to the
mill closets, or taken lns proper sta
ton in the mill and thence gone to
the closet by the back stair, he would
not have gotten under the overhang-
ing room, and the injury would not
have occurred. In addition to this, it
appeared that during the hours when
the mill was running, there were slab
cars running back and forth through
the yard, in such way as to make it
dangerous '"r persons to he there; and
that at nj. ~uch times there was, at
many places about the mill, more or
less danger, SO that persons employed
there had to be constantly on the
lookout. t-is ..
Upon these facts. the defendant
urged that plaintiff had himself so con-
tributed to his injury, that he could
not i'll any event recover; and it was
contended, that as the nature of his
employment did not at that time, or
at any time, demand his presence at
the furnace room, or in the yard, or
anywhere except where his work for
the moment was Ito wit: that MORN
ing at the scantling machine, at eight
o'clock he was to be treated as a
stranger, who was tresspassing without
leave, and that he could not be ex-
cused by the plea OF u necessity to
visit the closets; but it was proven
that no rule Of the establishment pro-
hibited the men from going into the
mill by the route adopted by plaintiff,
or required them to reach the second
story by the front stair, and that many
OF them did, daily, go to and fro, about
the yard as he did. He reached the
vicinity of the mill few minutes
early, the gates were open, and he did
what, under the usual condition of
things at that hour, he might have
done without actual risk. Therefore,
we cannot agree that his acts amount
ed to contributOry negligence. Be-
sides which, the testimony on that
point fully warranted u submission of
it to the jury; and we find no error in
the motion for Il non-suit, on that
ground. -t ....t. ...t.
4. Were Beaton and Carlson follow
servants2 Plaintiff maintains that the
defendant was not entitled to avail
himself OF that objection to a recovery
unless he pleaded it in his answer, and
that general denial did not raise
that issue. 1t may be, but we do not
so decide, that the claim is correct
when the objection is taken as a de-
Tense. But the gist of the complaint
is that the master has injured the
servant; therefore when the plaintiffs
proofs show that it is not the master,
but some other persona fellow SER
vant-who committed the wrong,
there can be no affirmative judgment,
and a motion for non-suit is the
proper method of moving the court to
a negative judgment.
The most earnest and learned ef-
forts of counsel in this cause were
directed to the enlightenment of the
court upon the proper rules of decision
for the determination of this question.
1t was agreed that if Beaton and Carl
son were fellow servants, there could
be no recovery, but there was radical
difference as to the standard by which
their relations were 10 be judged and
declared.
Plaintiff in error maintained that
Sec. l, of the code of 1881, which makes
the common law OF England the rule
OF decision in all the courts of Wash
lngton Territory, was decisive as to
the first step of the inquiry, namely
where the court should look for the
proper rules. We agree to this, but
we do not subscribe to the next prop-
osition, that resort can be had only 10
the decisions of English courts, or to
those of American courts which have
followed them, to ascertain what the
common law of England is, or was
unless the English decisions commend