Nordin v. Lovegren Lumber Co.

Mr. Justice McBride

delivered the opinion of the court.

1-3. It appears that it was plaintiff’s duty to snipe the logs upon the under side; “sniping” being nosing *143 off or beveling tbe end of a log so that there would be less friction and resistance as it was being hauled. There were two snipers; the duty of one being to snipe the upper half of the log as it lay upon the ground where it had fallen, and of the other, the plaintiff in this instance, to wait until the log was drawn out a short distance and turned over by means of the cable, and thereafter to snipe the side which had been next to the ground as the log lay originally. Two cuts or sawlogs had been made from one tree. The larger of these, the butt cut, had been already sniped as it had fallen, and while it was being taken out plaintiff was engaged in sniping another log about 85 feet distant, and not in view of the log that was being taken out. There was no swamper employed by the defendant; a swamper being a man whose duty it is to cut away brush and logs which have a tendency to obstruct the progress of a log which is being hauled out, thereby rendering the operation of hauling easier as well as safer. On the contrary, the logs were dragged out without regard to obstructions from logs or small trees in the vicinity. When the first log was hauled out, the front end of it near where the cable was attached necessarily struck against a small fir tree, and as,- a result of this impact the rear end slued around with such force that it was thrown against a clump of vine maple trees from 20 to 30 feet in height, bending them suddenly to the ground. The trees, being of a tough, springy nature, sprang back to their original position, as soon as the log was removed, and there appears to have been nothing left to indicate to a person who had not witnessed the circumstance that there was any danger likely to result from standing in their vicinity. With the exception of plaintiff, every member of the crew, including Hedin, in fact saw the collision of the *144 first log -with the small fir tree and its rehound against the vine maple, and were thereby warned of the unsafety of standing near the maples when a log was being hauled out. When plaintiff had finished his work on the log he had been sniping, and after the first log above mentioned had been hauled out, he came up to the vicinity of the second log in order to be ready to snipe it upon the under side as soon as it should be drawn from its bed and turned over for that purpose, and, in ignorance of the fact that the first log had collided with the fir tree and rebounded against the maples in such a way as to make them a menace to anyone standing near them, he stood in such a position that they were between him and the log that was to be hauled out. Nobody warned him, and it is not shown that anybody noticed him before the accident. There is evidence tending to show that the acting foreman was walking up the track made by the previous log, and was in such a position that he could have seen him, but he states that he did not, and did not know that plaintiff was in the vicinity. The second log was made fast to the cable and the engine started at full speed. When the log came in contact with the small fir tree which had caused the farther end of the first log to slue around and strike the vine maples, the result was the same as before, and one of the trees was bent or whipped down with such force that it struck plaintiff upon the head, inflicting injuries from the effect of which he was rendered incapable of speech, is paralyzed on one side, and will be practically helpless for life. In all this testimony we find nothing to justify any instruction as to contributory negligence or assumption of risk. The nature of plaintiff’s duties required him to be where he was or in that immediate vicinity ready to snipe the log without delay the min *145 ute it was drawn ont and turned over. He was ignorant of the fact that the impact of the first log with the fir tree had caused it to strike against the maples, while the foreman knew that fact and knew that plaintiff was employed at that time at another place. The risk was not so open and obvious that he can be said to have assumed it. It was a risk which, while known to the foreman in immediate charge of the work, was unknown to plaintiff, and a risk which the employment of a swamper, or in the absence of a regular swamper one of the other hands under the direction of the foreman, could have obviated. It requires no argument to demonstrate the fact that the work of getting out sawlogs by means of an engine and cables is a work involving risk and danger of injury to the employees, and the manner in which the- work was conducted in defendant’s logging camp without any previous swamping. or removal of obstructions rendered it doubly dangerous.

4. It was for the jury to say whether the failure of the defendant to remove the fir tree which was the original obstruction which caused the log to swing around, or the failure to remove the maples which were the immediate agents producing the injury, were either or both the neglect of such precautions as would have been proper under the circumstances.

5. The question as to whether there was a negligent failure to warn plaintiff was also a proper matter for their consideration, and there was no ground for a nonsuit. The case is similar in many respects to Blair v. Western Cedar Co., 75 Or. 276 ( 146 Pac. 480 ), and, as the opinion in that case answers many of the contentions urged here, they need not be further considered. In addition to that ease the following cases may be cited as indicating that injuries occurring under *146 circumstances similar to the case at bar properly come within the purview of the Employers’ Liability Act: Wolsiffer v. Bechill, 76 Or. 516 , 146 Pac. 516 ; Bridal Veil Lumber Co. v. Pacific Coast Casualty Co., 75 Or. 57 ( 145 Pac. 671 ); Lang v. Camden Iron Works, 77 Or. 137 ( 146 Pac. 968 ); Yovovich v. Falls City Lbr. Co., 76 Or. 585 ( 149 Pac. 941 ); Wheeler v. Nehalem Timber Co., 79 Or. 506 ( 155 Pac. 1188 ). To sum up the evidence upon this branch of the case it may be said that there was no evidence of contributory negligence on the part of the plaintiff and no evidence of any assumption of risk.

6. On the other hand, there was evidence: (1) That defendant was engaged in the operation of dangerous machinery, namely, an engine for hauling logs with cables and chains attached and operated by steam; (2) that defendant was negligent in not providing a swamper to perform this duty or in not calling workmen from other duties to perform the work of a swamper; (4) that the person immediately in charge of the work and who had the supervision of it was negligent in the operation of the machinery, in that he gave the signal for fast speed in drawing out the log after observing the effects of such speed upon the preceding log; (5) that the person supervising the work was negligent in not warning plaintiff of the danger of standing in the vicinity of the log while it was being drawn out after such foreman had observed the tendency of a log drawn along this route to swing around violently, as demonstrated in the case of the log which had' just preceded it. We do not say that the evidence for plaintiff is conclusive or overwhelming upon all, or, indeed, any, of these propositions, but there was some competent testimony upon each of them, and its weight and sufficiency were exclusively *147 for the jury. Several objections are urged as to the rulings of thé court upon the admission of testimony, but we find the case remarkably free from error in these respects and .deem a discussion of each assignment unnecessary.

7, 8. We will now consider the exceptions to certain instructions given by the court. The first of these is as follows:

“I charge you that as a matter of law the defendant is under a duty, which it cannot delegate to others, to furnish this plaintiff with a reasonably safe place to work, and that the failure on the part of the defendant to furnish a reasonably safe place to work is negligence, and renders the defendant liable in damages for the injury of this plaintiff caused by reason of such negligence.”

This is an action based purely upon the Employers’ Liability Act, which provides, among other requirements :

“All owners, contractors, or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, care, and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine, or other apparatus, or device, and without regard to the additional cost of suitable material or safety appliance and devices”: Laws 1911, p. 16, § 1.

In view of this provision the instruction was quite as favorable to defendant as the law warranted. Instead of holding the employer to the exercise of ‘ ‘ every device, care, and precaution,” the instruction required it only to have furnished the defendant with a “reasonably safe” place in which to work, which means the use of such precautions as accords with the general and ordinary course* adopted by those in the same *148 business: Words and Phrases, p. 5985, citing Reed v. Missouri, K. & T. R. Co., 94 Mo. App. 371 ( 68 S. W. 364 ); Cunningham v. Journal Co., 95 Mo. App. 47 ( 68 S. W. 592 ); Geno v. Fall Mountain Paper Co., 68 Vt. 568 (35 Atl. 475 ).

9. The next instruction objected to is as follows:

“If you find in this- case that the plaintiff, B. M. Nordin, acted with ordinary care, and that the aeci-; dent was one which the defendant could have reasonably foreseen and prevented by the exercise of ordinary care, then your verdict must be for the plaintiff.”

Considering the circumstances of this case and the statutory duties imposed upon employers, this instruction seems unobjectionable.

Objection is made to two other instructions which eliminated the common-law defenses of assumption of risk and the negligence of fellow-servants, but for reasons already given we think that no error was committed in that' respect.

10. Another objection is made to an instruction by the court as to plaintiff’s expectancy of life, which the court placed at 38 years. This was in accordance with the evidence, which showed that plaintiff was at the time of the accident of the age of 26 years and in robust health in every respect. The better rule seems to be that the courts will take judicial notice of the mortality tables, which in this instance indicate that plaintiff’s expectancy of life at the time of the accident was 38.11 years: Bouvier’s Diet., tit. “Life Tables”; 16 Cyc. 871; 8 Ency. Ev. 639.

11. The defendant presented a long series of requests for instructions embodying the common-law rules in regard to assumed risk, contributory negligence, and negligence of a fellow-servant, all of which the court refused to give, assigning as a reason that *149 lie had not time to consider them. Most of them were inapplicable to this case, for reasons already given, and those which were applicable were sufficiently covered by the general charge. Owing to the length and number of these requests, it is impracticable to take them up and discuss them seriatim in this opinion.

12. The last objection is to the refusal of the court ' to caution the jury against allowing their sympathies to have any influence upon their verdict. It has been frequently held that the giving or refusing of cautionary instructions of this character is within the discretion of the court: Scheurmann v. Mathison, 67 Or. 419 ( 136 Pac. 330 ).

13. In the instant case it appears that as a result of the injury the defendant has been transformed from a strong, healthy, self-supporting man into a speechless paralytic and helpless wreck. Taking into consideration his earning power, which was shown to be $3 a day, his expectancy of life, which was 38 years, his expenses for surgical and hospital aid, which amounted to more than $1,200, the verdict of $5,000 seems to us to have been very small; indeed, too small to indicate that sympathy influenced the deliberations of the jury. It is evident that when his attorney’s fees are taken from this he will have a very small capital upon which to subsist—far less than the income he would have been entitled to recover under our beneficent Workman’s Compensation Act. If his injury and the smallness of the compensation awarded do not “adorn a tale,” they at least “point a moral” which is obvious.

The judgment is affirmed. Affirmed.

Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.