Swanstrom v. Frost

AIDSHIE, C. J. This action was instituted by the plaintiff in the lower court for the recovery of damages for personal injuries resulting from the alleged negligence of the defendant. The plaintiff received his injuries while “decking” logs. It appears that the plaintiff, who is respondent in this court, was a log decker, and was set to work by appellant decking sawlogs while the logs were being hauled upon the deck by means of a team attached to a long chain, and the logs were thus being elevated to the deck by a method called “cross-hauling.” The team was driven by another employee of the appellant. While the logs were being hauled up the skidway to the deck, it was the duty of respondent to signal the teamster whenever he desired the team to stop, and it was the duty of the teamster to stop on the signal from the man on the deck. [83] The grounds of negligence charged are, (1st), that the teamster employed by appellant was deaf, and could not, and did not, hear the signal to stop; and, (2d), that the ground over which the team had to travel in hauling the logs on to the deck was so muddy, swampy and in such a dangerous condition as not to afford the team sure or safe footing, which resulted in irritating the team and rendering them unmanageable, and making it impossible to stop them promptly on giving the signal. In hauling a log on to the deck, after the deck had been built to a height of about sixteen feet, one end of the log moved up the skidway faster than the other, pointing crosswise of the deck, which is called by lumbermen “gunning.” The respondent claims that he gave two or three signals to the driver to stop, but that the driver either failed to hear the signal, or neglected or was unable to stop the team, and so they kept going, and respondent, in his effort to get out of the way of the log, was thrown off the deck, receiving severe injuries, for which this action has been prosecuted. The case was tried to a jury and a verdict rendered in favor of the respondent, and this appeal was thereupon prosecuted. It is contended that the evidence fails to disclose any negligence on the part of the appellant and that, on the contrary, the respondent both assumed the risk and was guilty of contributory negligence. If we were adjudging this ease in the capacity of jurors for the purpose of weighing the evidence and determining the preponderance of the evidence, we are inclined to the opinion that upon the record as it comes to us on appeal we should conclude that the respondent both assumed the risk and so contributed in negligent acts as to bar a recovery. We are mindful, however, of the fact that in this case there must have been some circumstances and 'conditions which confronted the jury and trial court which we cannot see or learn from a record. There is also some evidence in the record which may be considered material and. substantial that would support such a verdict. In our opinion, there is sufficient in this case to bring it within the rule this court has announced [84] in Adams v. Bunker Hill etc. Min. Co., 12 Ida. 637, 89 Pac. 624, 11 L. R. A., N. S., 844, Carscallen v. Coeur d’Alene etc. Transp. Co., 15 Ida. 444, 98 Pac. 622, 16 Ann. Cas. 544, Wheeler v. Oregon R. & Nav. Co., 16 Ida. 375, 102 Pac. 347, Maloney v. Winston Bros. Co., 18 Ida. 740, 111 Pac. 1080, 47 L. R. A., N. S., 634, Maw v. Coast Lumber Co., 19 Ida. 396, 114 Pac. 9, Staab v. Rocky Mt. Tel. Co., 23 Ida. 314, 129 Pac. 1078, and Calkins v. Blackwell Lumber Co., 23 Ida. 128, 129 Pac. 435. The question argued by appellant that respondent was at fault in that he received the injury while attempting to “square” the log by throwing his weight on it when it was “gunning” is not a controlling question here. This question went to the jury, and they evidently thought the respondent did not act negligently or recklessly. The jury may have concluded that the team used on the “cross-haul” was not a safe team or that the driver was deaf and that the employer was negligent in furnishing such a team or such a driver, or in both respects. These reasons were advanced by respondent as grounds of negligence on the part of the employer. We find no error in the giving or refusing to give instructions. The judgment is affirmed. Costs awarded in favor of respondent: Sullivan, J., concurs.