Lindsay v. Grande Ronde Lumber Co.

Mr. Chief Justice Bean delivered the opinion. 1. It is unnecessary to notice the alleged errors seriatim, for they are all, except the last, based upon the theory that the complaint charges but one specific act of negligence as the proximate cause of the injury to the plaintiff, and that is the removal by the defendant of the employee Kinney from the head of the shoot a short time before the log causing the injury to plaintiff was sent down, and directing the teamsters who were hauling logs to start them down without instructing them how to do so with safety to the plaintiff and others working at the middle bench. With this construction of the allegations of the complaint as a premise, counsel argue that the motion for non-suit was well taken because the proof shows, as they claim, that Kinney was not removed from the head of the shoot, but was at work there at the time the log causing the injury to the plaintiff was started down, and was in fact the person who started it, and that it was error for the court to instruct the jury in reference to the duties of the defendant to promulgate and enforce suitable rules and regulations governing the work of sending logs down the shoot, because such instructions were not within the issues made by the pleadings. In this construction of the complaint we are unable to concur. It is perhaps unnecessarily long and prolix, but it manifestly proceeds upon the theory that it was the duty of the defendant to exercise reasonable care and prudence to provide the plaintiff with a reasonably safe place in which to work, and that from the nature and character of the work at the middle bench, and the [437] dangers necessarily attending it, it was not such a place unless the defendant had established and enforced adequate rules or regulations among its employees governing the manner in which the work should be done, and providing for proper and timely warning to the men at work at the middle bench before logs were started down the shoot. It is expressly alleged that without the enforcement of such rules or regulations the place at which plaintiff was put to work was extremely hazardous and dangerous, and that defendant failed and neglected to promulgate or enforce any rule or regulation for the safety of its employees, and that the want of such a rule or regulation was the cause of the accident to the plaintiff. That .the place at which plaintiff was put to work was extremety dangerous and unsafe without the strict enforcement of a rule or regulation requiring the men to be warned of the approach of a log a sufficient length of time to seek a place of safety, and that a failure or neglect of the defendant to promulgate and enforce some such regulation would be actionable negligence, are too clear for argument: Anderson v. North Pac. Lum. Co. 21 Or. 281 (28 Pac. 5). And one of the issues made by the pleadings and tried in the lower court was whether the defendant had discharged its duty in this regard. The complaint alleges that it had failed and neglected to provide or enforce such a rule or regulation. This averment is not only denied by the answer, but it is affirmatively alleged that defendant had promulgated and enforced a rule requiring that before a log should be started down the shoot the men at work at the middle bench should.be notified and given time to place themselves in a position of safety, and that after they had done so they were to notify the parties stationed at the head of the shoot, who should then send the log down. To disregard these averments of the pleadings and the issues thus tendered and made would be giving to the complaint altogether too technical a construction for the practical administration of justice, and especially so since the question does not seem to have been raised or suggested until the trial. It is true the complaint alleges that on the morning plaintiff [438] went to work at the middle bench defendant had an employee (which the evidence shows to have- been Kinney) stationed at the top of the shoot to attend to starting the logs and to see that warning was given to the employees working at the middle bench in time to take precaution for .their safety, and that while he was attending to his duties logs were sent down at regular intervals, and notice and warning given before the next succeeding lot were started, and that in such manner the work was safely conducted, but that a short time before the accident this employee had been removed and the teamsters directed to send the logs down immediately and without any system, and that after the removal of such employee the log causing the injury was sent down. This is but a part of the averments of the complaint, and it is not alleged that the employee stationed at the head of the shoot had. been properly instructed in regard to his duties or that he had been instructed at all, or that suitable rules or regulations had been promulgated by the defendant for his guidance, or that his removal was the sole and proximate cause of the injury to the plaintiff. Indeed, the contention that the complaint assumes that he had been properly instructed as to his duties is negatived by the positive averment that no rules or regulations had been promulgated by the defendant governing the conduct of the work at the shoot or the manner of giving warning to the employees at' the middle bench of an approaching log. We are of the opinion, therefore, that the complaint charges negligence in not providing suitable rules or regulations governing the conduct of the.work, and that the court was not in error in submitting the cause to the jury on that theory. 2. The remaining question arises upon the overruling of the motion to set aside the verdict because it is excessive. It was held by this court in Nelson v. Oregon Ry. & Nav. Co. 13 Or. 141 (9 Pac. 321), that where the verdict of a jury in an action of this kind is excessive it is the duty of the trial court to set it aside, but its refusal to do so cannot be reviewed on appeal because it does not present a question of law, but one of fact, which the court is not authorized or empowered to examine. [439] This case has been subsequently followed (McQuaid v. Portland & V. Ry. Co. 19 Or. 535, 25 Pac. 26; Kumli v. Southern Pac. Co. 21 Or. 505, 28 Pac. 637; Coos Bay Nav. Co. v. Endicott, 34 Or. 573, 57 Pac. 61; Sorenson v. Oregon Power Co. 47 Or. 24, 82 Pac. 10), and we know of no reason why it should be now disregarded. The verdict in this case is large, but the trial judge, who saw the parties, heard the witnesses, and was necessarily more familiar with the facts than we can be from reading the record, declined to disturb the verdict, and nothing appears to justify our interfering with his conclusions, even if we had the right to do so. Judgment affirmed. Affirmed.