Weeklund v. Southern Oregon Co.

Strahan, 0. J. — An unusual number of exceptions were taken to the instructions given and refused by the court, but the view we have taken of the case renders it unnecessary to examine each exception. The real facts in this case are covered up in a vast amount of unnecessary verbiage, but when relieved of it they are few and plain. In the spring of 1889 the plaintiff entered the service of the defendant to pile lumber at its sawmill on Coos bay, and the uncontradicted evidence shows that one employed in that capacity, according to the uniform custom of the mills there, also assisted in taking care of all the lumber that came from the mill; and it further appears that the plaintiff, after his employment and up to the time of the injury complained of, assisted in moving and caring for whatever lumber was turned out by the mill. One Shagreen and Foley were employed by the defendant, who worked with plaintiff about the yard, Foley acting in the capacity of a kind of “wharf-boss.” The accident complained of occurred in moving timbers from defendant’s sawmill into Coos bay. The timbers to be moved were twelve in number, 20x22 inches and 88 feet long. The distance from the end of the car track to the [596] bay was 68 feet, which was the distance the timbers had to be moved. A pile of lumber 64 or 65 feet long, from 15 to 20 feet wide and about 8 feet high, extended from the mill nearly to the edge of the wharf. On the top of this lumber pile a chute was constructed by Foley and the plaintiff, but under Foley’s directions. In the first place, a number of pieces of timber 5 inches thick, from 12 to 33 inches wide, were laid across the lumber pile, and on top of these were laid two planks, each 4x12 inches wide, extending to the edge of the wharf on a gradual incline. On the top of the chute thus formed were placed three rollers 10 inches in diameter and 2J feet long. The planks were securely spiked to their supports and dogged together so that the same could not and did not separate. The timbers were pinched from the carriage until they rested upon the rollers. The rollers were kept straight by men with mauls attending them as the timber was slowly and gradually moved upon them. The incline was so slight and gradual that they had no difficulty in regulating the movement of the timber on the rollers until the middle of the stick passed the edge of the wharf, where it plunged into the waters of the bay. All of the timbers were launched without accident to any one until it came to the last. After this stick was upon the rollers, they were not kept at right angles with it, and the front end slued around, striking the lumber pile upon which the plaintiff and others engaged in the work were standing. This caused a number of the boards from the top of said pile to fall upon the plaintiff’s leg, by means of which it was broken. Neither the chute nor any of the cribbing supporting it separated or failed in any way, and the sole cause of the injury was the sluing of the rollers. We think all the evidence on both sides, so far as it relates to, accounts for, or explains the manner of the injury, concurs in this. At the conclusion of the plaintiff’s evidence, the defendant moved for a non-suit for the reason that the plaintiff had not proven a case sufficient to be submitted to the jury. This was overruled and an exception taken; but we do not [597] propose to pass upon this exception, as the case will be disposed of on other grounds. The court charged the jury upon the theory that there was some evidence before them of negligence on the part of the defendant upon which they might find a verdict, for the plaintiff. In this we 'think the learned circuit judge erred. The most that can be said for the plaintiff’s evidence is, that some of it tended to prove, or at least some of the witnesses gave it as their opinion, that the better way to have launched those timbers was to lower them from the carriage, by means of an apron, down upon the wharf, and then move them into the water; but this is not enough to prove that the defendant was negligent in adopting the means which it did. It does not tend to prove that the plan adopted by the defendant was not reasonably safe or secure. In addition to this, all the evidence tends to prove that if the piece of timber had been kept upon the chute there was no possible danger. It was the inattention of the men at the rollers with the mauls that caused the rollers to slue round, which made the end of the stick strike a portion of the lumber and caused the same to fall, and this was what injured the plaintiff. These men, and all engaged in the moving of these timbers, were the fellow-servants of the plaintiff, and if they were negligent the master was not liable for it. The negligence of fellow-servants is one of the risks which the plaintiff assumed when he entered the defendant’s service. But in addition to this, the plaintiff assisted in the construction of the chute. He knew all about its structure and purpose. The defendant had no knowledge on that subject that was not equally possessed by the plaintiff, and after the chute was completed, the plaintiff pronounced it safe and suitable for the purpose for which it was made. If an injury happened to the servant under these circumstances, the master is not responsible. (Kielley v. Belcher S. M. Co. 3 Sawy. 500; Bunt v. Sierra Buttes G. M. Co. 11 Sawy. 178; Loonam v. Brockway, 28 How. Pr. 472; McGuynn v. Brodie, 31 Cal. 376; Railroad Co. v. Jewell, 46 Ill. 99, 92 Am. Dec. 240.) [598] For the reasons that many of the instructions given by the court were not justified by the evidence, and are at variance with what is here said, the judgment appealed from must be reversed and remanded for such further proceedings as may be proper, not inconsistent with this opinion. In disposing of this case we have not found it practicable to examine each exception. The defendant asked fifty-four instructions, many of which were given in a modified form, others were refused, and some of them were given as asked. The court gave fifty instructions, to many of which exceptions were taken. To examine separately each of these rulings would require more time and labor than we can bestow upon a single case. Nothing short of a moderate-sized treatise on the law of negligence and its cognate subjects would suffice. Such voluminous instructions must tend to confuse the jury rather than elucidate the questions they are to consider. A few plain and simple propositions of law applicable to the facts will aid them in reaching a correct conclusion much more effectually than some of the complicated statements to be found in this record. Let the judgment be reversed and the cause remanded to the court below for such further proceedings as may be proper, not inconsistent with this opinion. Bean, J., having presided at two former trials of this case, did not sit here.