Barnhart v. North Pacific Lumber Co.

162 P. 843, 82 Or. 657, 1917 Ore. LEXIS 91

• Court: Oregon Supreme Court
• Decided: January 30, 1917
• Status: Published

Opinion

Mr. Justice Harris

delivered the opinion of the court.

1. For the purpose of this appeal we may assume that both litigants admit that the plaintiff was injured, and that the injury was caused by a piece of lumber on the dead rolls being shoved against him. The point in controversy was whether Tony Mike, a fellow-servant, shoved the lumber against the plaintiff as claimed by the defendant or whether a piece of lumber veered from the live rolls and struck the lumber on the dead rolls as claimed by plaintiff. Speaking to the jury the trial court said:

“If you find from the evidence that the defendant was not guilty of negligence set forth in the complaint under the law referred to, but that the accident happened solely because of the negligence of Tony Mike, then your verdict should be for the defendant.”

The jury returned a verdict for the plaintiff and the verdict implies that the jury found that the injury was caused, not by the negligence of Tony Mike, but by the negligence of the defendant in not installing a guard on the rolls or by failing to provide an offbearer.

2. The defendant complains because the court did not give a lengthy instruction concerning Tony Mike as a fellow-servant and the consequences of an injury caused by him alone; but, since the instruction given by the court told the jury in a few plain words what the requested instruction of the defendant would have told in many words, there can be no room to contend that the defendant was injured.

3. The court properly denied defendant’s motion for an instructed verdict. The plaintiff testified thus:

“I was struck on the legs by a piece of lumber on the dead rolls which was pushed forward by another piece of lumber then being carried forward on the live rolls.”

Continuing, he stated that he looked around and saw Tony Mike over on the main side of the mill where he had gone to assist in bringing a cant to thé pony carriage, and that Tony Mike had been helping to bring cants over to the pony carriage, in the language of the plaintiff, ‘ ‘ since I be there. ’ ’ Barnhart also testified that Tony Mike stood at one end of the dead rolls and next to the live rolls, and worked as an off-bearer ; “when he got time he worked over there, whenever he had time.” There was evidence to sustain the contention of the plaintiff, and, notwithstanding the quantity of evidence to the contrary, he was entitled to have the facts determined by the jury.

At the time of the preparation of the bill of exceptions the defendant insisted that the plaintiff had not testified at the trial that he “was struck on the legs. by a piece of lumber on tbe dead rolls which was pushed forward by another piece of lumber then being carried forward on the live rolls.” The trial court expressly found that the answer was given by Barnhart when a witness. In addition to its appearance in the bill of exceptions, the quoted answer appears in the transcript of the testimony over the certificate of the official reporter; and, furthermore, 11 of the jurors say that the bill of exceptions correctly reports the testimony of Barnhart. Even though it be assumed, without deciding, that the instant case is not governed by Allen v. Standard Box & Lumber Co., 53 Or. 10, 16 (96 Pac. 1109, 97 Pac. 555, 98 Pac. 509), and that the certificate of the trial judge is not conclusive, nevertheless the showing made by the defendant is not sufficient to overcome the finding made by the trial court.

• 4. The defendant insists that the court committed prejudicial error in omitting the element of practicability from two instructions. The court made it clear to the jury in another part of the charge that the Employers’ Liability Act (Chapter 3, Laws 1911) only requires the use of practicable devices and precautions, for the court said:

• “The law made it the positive duty of the employer to use, under said circumstances and conditions, every device, care and precaution which it was practicable to use for the protection and safety of the life and limb of plaintiff, limited only by the necessity of preserving the efficiency of the machinery, apparatus or device which was being used, without regard to the additional cost of suitable material, safety appliances or devices.”

Afterward the court again told the jury that:

“The question for you to determine is, first, was this a dangerous machine, and, if so, the defendant must use every care, device and precaution to protect the employee from being injured if it is practical to do so. Of course, you realize that if it is impractical, he is not required to do so.”

The defendant has no just ground for complaint when the charge is taken in its entirety.

5. There was no abuse of discretion in refusing to give a cautionary instruction: Scheurmann v. Mathison, 67 Or. 419, 424 (136 Pac. 330, 7 N. C. C. A. 1071); Nordin v. Lovegren Lumber Co., 80 Or. 140, 149 (156 Pac. 587); Childers v. Brown, 81 Or. 1 (158 Pac. 166).

The judgment is affirmed. Affirmed.

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