Wheeler v. Nehalem Timber Co.

155 P. 1188, 79 Or. 506, 1916 Ore. LEXIS 203

• Court: Oregon Supreme Court
• Decided: March 14, 1916
• Status: Published

Opinion

Opinion by

Mr. Chief Justice Moore.

1,2. The operation of a logging camp in Oregon usually involves such risk and danger to the employees engaged in the business that the court could not say, as a matter of law, that the cause of action stated in the complaint did not come within the provisions of the Employers’ Liability Act, and, this being so, the jury were entitled, under proper instructions, to determine the matter. If they concluded the action came within such enactment, the separate defenses of assumption of risk, contributory negligence, and carelessness of fellow-servants, as set forth in the answer herein, would be eliminated: Laws Or. 1911, c. 3; Blair v. Western Cedar Co., 75 Or. 276 (146 Pac. 480); Yovovich v. Falls City Lumber Co., 76 Or. 585 (149 Pac. 941, 943).

3. It is maintained that an error was committed in denying the motion for a judgment of nonsuit. The proximate cause of the injury of which the plaintiff complains was the starting of a fire in the stub by a fellow-servant, and the question to be considered is whether or not the testimony tends to show that the blaze thus kindled was reasonably calculated to promote the business in which the defendant was engaged. It will be remembered that Mr. Nowak, the defendant’s foreman, knew the employees had occasionally kindled fires on the ground where they were working in order that they might warm themselves, to which conduct he made no objection. Such method of obtaining artificial warmth was tacitly sanctioned by the defendant’s agent who had charge of this branch of the work.

R. J. Moylan, the defendant’s superintendent, in answer to the direction, “State to the jury why it is not customary to have fires down there in the woods when the men are at work,” replied: “Well, I never considered it necessary for them to have a fire. If they were working they did not need it. Men working keep warm without a fire.” The truth of this observation will be generally admitted. Occasions may arise, however, when from a lack of immediate necessity laborers are compelled to cease operations until their efforts are again required. It will be kept in mind that when the buckers had cut into logs the first tree which was felled in their vicinity on the morning of the accident there remained no more work for them to do until another tree was ready for them to begin upon. In this situation and in consequence of the then prevailing inclement weather, they built a fire in the stub for their own protection, as was their custom on former occasions. The plaintiff and his assistant had little need of artificial heat, for they could undoubtedly keep warm by constantly operating their saw in felling timber. Not so with the buckers, however, for when they had cut into logs the first tree, their work was temporarily suspended. By keeping warm until another tree had been felled, the buckers were unquestionably better fitted to perform the duties demanded of them, than they would have been if their hands were numb with the cold, thereby hindering them, from successfully operating their saws.

The defendant’s foreman (Nowak) evidently recognized the need of such artificial warmth, and from this circumstance and tacit admission the jury might have found that his principal’s business was advanced by kindling a fire in the woods when the employees were temporarily idle and the weather was cold, so that their hands might be in a proper condition to resume labor when the occasion arose.

The testimony was sufficient to authorize a submission of the cause to the jury, and, this being so, no error was committed in denying the motion for a judgment of nonsuit.

4. It is contended that an error was committed in. instructing the jury that they might determine from the evidence received whether or not the business in. which the defendant was engaged was of such a complicated nature and of such a dangerous character as to require the promulgation of rules for the protection of its employees, so that from a failure to publish such regulations, if found to be essential, an inference of negligence might be deduced. In order to substantiate the legal principle thus asserted, the brief of the defendant’s counsel upon this branch of the case reads:

“The question whether the master was at fault in failing to adopt suitable rules is not for the jury, unless there is something in the testimony from which the inference may be drawn that it was practicable to have provided against the occurrence of the accident complained of by such rules.”

Many decisions are cited in support of this doctrine. This question, however, is not properly presented for consideration. In the assignments of alleged error set forth in the appellant’s printed abstract, ten objections to the action of the trial court are devoted to its refusal to charge the jury as requested, while not a single complaint is there made to the giving of any instruction. Our Rule 12 (56 Or. 621, 117 Pac. ix), prescribing the manner of reviewing a judgment on appeal, declares:

“On the hearing in this court, no questions will be examined or considered, except those going to the jurisdiction of the court, or when the pleading does not state facts sufficient to constitute a cause of action or defense, or those arising upon the assignments of error as contained in the printed abstract. ’ ’

By reason of the failure to set forth such assignment in the printed abstract, the question now insisted upon will not be examined.

It follows from these considerations that the judgment should be affirmed, and it is so ordered.

Affirmed.

Me. Justice Benson, Me. Justice Burnett and Me. Justice McBeide concur.