Nelson v. St. Helens Timber Co.

Mr. Justice Moore delivered the opinion of the court. 1. - It is contended that an error was committed in refusing to set aside the judgment and to grant a new trial, the application therefor being based on the ground that the amount of damages awarded was excessive. The defendant’s abstract contains what purports to be a copy of the order denying the motion, assigning as a reason therefor that Article VII, Section 3, of the Constitution, as amended, deprived the trial court of power to grant such relief. Though the ruling complained of was not made a part of the bill of exceptions, it is argued that since the order was set forth in the abstract, to which no objection was made until plaintiff’s brief was filed, the alleged error should be considered. 2. The assignments of error on appeal from a judgment in a law action are equivalent to the averments of a complaint, which allegations are impliedly denied by the adverse party. The issue thus formed is to be determined from a consideration of a bill of exceptions, which affords the only available evidence applicable to the matter. As the formal statement in writing of the exceptions taken to the rulings of the court, as settled and allowed, does not contain any reference to the motion referred to, the action of the court thereon is not before us for consideration. 3. An exception having been taken to a part of the court’s charge, as evidenced by the transcript but in — 573 — advertently omitted from the bill of e’xcepiioi'if;, it is insisted that an error was committed in instructing the jury as follows: “When an employer takes on a new band, it is bis duty to explain to the man the work, if there is any danger about it, and point out to him where the danger is, and how it is likely to arise, and if he moves a man from one employment to another it stands on the same footing. He must see that his employees are instructed as to the dangers of the business unless the employee can' see them, and any man of his age, intelligence and experience can know what they are without explanation, or unless he is experienced or says he is. If he claims to be an experienced man in that line of work, why then you don’t have to tell a man a thing he already knows.” In order to render the language complained of relevant, it becomes necessary to state the facts involved, so as to determine whether or not the plaintiff possessed such a degree of knowledge of the instrumentalities causing the hurt as to enable the court to say, as a matter of law, that he assumed the risks incident to the employment in which he was engaged at the time he was hurt. The testimony tends to show that plaintiff at the time he was hurt was 34 years old. He is not a native of this country and had been in the Hnited States only a year and a half. He could not speak the English language but understood a few words thereof. After working for the Chapman Timber Company five months, engaged in cutting wood and snipping logs, he was employed by the defendant and worked for it, prior to the hurt, eight months rolling logs down an inclined way and piling them near a railway operated by the defendant. The cars used to transport logs from the camp to the market consisted of four wheel trucks, about ten feet long, having a cross-bumper on which the ends of the logs rested. Two trucks were used for each load; — 574 — the forward carriage being connected by an iron link held in place by an iron pin to the car or locomotive, immediately in front of it. Until the day preceding the accident the plaintiff had never assisted in loading logs upon trucks, but on that day, the man whose duty it was to help perform that service being absent, Nelson, at the direction of C. M. McDonnell, who had charge of that branch of the work, assisted in placing logs on the cars. The next day, a load of logs having been placed on trucks, McDonnell released the brakes, causing the cars gradually to move downgrade at the rate of about four miles an hour toward another loaded car, and directed the plaintiff to make the coupling. Nelson, being on the right side of the moving car, held the link thereof with his left hand, and as the trucks neared the car standing on the track he removed the pin therein with his right hand so as to allow the link to enter at the proper place where he dropped the pin into position, but failing to remove his left hand, it was crushed by the ears coming together. Prior to the accident he rode on the trucks nearly every day in going to and returning from his work. He had seen brakemen couple these cars and he had worked near the defendant’s railway where the trucks were in daily use, but before the injury he had never attempted to make a coupling. It is argued by the defendant’s counsel that the testimony adverted to shows that the risk of coupling cars with an iron link and a pin was so visible as to compel the plaintiff, who was of mature years, to form a just estimate of the hazard to which he was exposed and of the consequences which might possibly result to him from any delay or false movement in performing the service, so as to render it unnecessary for the defendant to notify or warn him of a fact of which he was also well aware, and, this being so, the instruction — 575 — challenged was erroneous. The question to be considered is whether or not the hazard incident to coupling, in the manner indicated, a car loaded with logs moving on a downgrade was so visible that the plaintiff who was inexperienced in such service, but who for several months had ridden on logging trucks to and from his work and had seen such couplings made, was bound to observe and avoid the danger, thus relieving the defendant of the duty of warning him of the risk. “Railroad employees who are required to couple and uncouple cars,” says a text-writer, “are presumed to know the risk of this detail of the service and to assume it”: White, Personal Injuries on Railroads, § 335. To the same effect is Tucker v. Northern Terminal Co., 41 Or. 82 (68 Pac. 426). This rule, however, can have no application to the plaintiff, who was employed to assist in rolling and piling logs preparatory to their shipment, which service did not require him to couple cars. Whether or not from riding daily upon the trucks he must have seen that the buffers occasionally came in contact with each other, notwithstanding the link and pin, and that the danger in coupling such cars must necessarily have been apparent, cannot be inferred in the absence of evidence tending to show the character of any part of the defendant’s railway, over which he rode, as to being downgrade. A careful examination of the entire evidence, which is attached to the bill of exceptions, does not show that he understood or should have appreciated the danger incident to coupling cars. If he had never seen the buffers strike each other, he may reasonably have inferred that the drawheads of the cars were so constructed that the slack of the train from inertia or in moving on a downgrade would cause the ends of the link to come in contact with some obstruction made for that purpose, thereby preventing a contact of the — 576 — buffers. Tbe assumption of risk was put forward by tbe defendant to defeat a recovery, and in order to substantiate the averment it was required to produce testimony tending to support the allegation. No evidence was offered to show the character of the defendant’s railway as to whether or not it was a tangent or consisted of a series of curves, was level or otherwise, except at the place where the injury occurred, so that by riding on the trucks it would necessarily be inferred, that the plaintiff observed the buffers strike each other One of the duties which the master owes is to exercise reasonable care in instructing an inexperienced adult servant as to the dangers incident to a performance of the service and to warn him how properly to avoid the hazard, unless the risk is so open and apparent that any person of his age, experience and-capacity should have appreciated the danger to which he was subjected: 7 Am. & Eng. Ency. of Law (2 ed.), § 350; Westman v. Wind River Lumber Co., 50 Or. 137 (91 Pac. 478); Magone v. Portland Mfg. Co., 51 Or. 21 (93 Pac. 450); Ferrari v. Beaver Hill Coal Co., 54 Or. 210 (94 Pac. 181, 95 Pac. 498, 102 Pac. 175, 1016); Elliff v. Oregon R. & N. Co., 53 Or. 66 (99 Pac. 76). In the latter case it was ruled that, when a servant was taken from his usual work and required to assist in some hazardous task with which he was not conversant, the change in employment rebutted any inference which might arise that in seeking service he impliedly represented that he was qualified to perform any labor that might be demanded of him. The rule thus recognized supports that part of the charge under consideration to the effect that, in requiring the plaintiff to couple cars instead of rolling and piling logs, he should have been warned of the danger incident to the duties outside the service he was engaged to perform. — 577 — 4. It was incumbent upon tbe defendant not to expose the plaintiff to risks that did not pertain to the service in which he was engaged, and as Nelson was placed under the authority of McDonnell, who directed him to do an act not within the scope of his employment, and which exposed him to a hazard and danger not contemplated in the contract of service, the defendant is liable for the resulting injuries, unless the plaintiff was chargeable with contributory negligence or the act was done under such circumstances that it could be said he assumed the risk: Wood, Master & Servant (2 ed.), § 439; Cincinnati etc. R. Co. v. Madden, 134 Ind. 462 (34 N. E. 227); Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205. The instruction complained of was a true exposition of the law applicable to the facts herein, and no error was committed as alleged. Other errors are assigned, but deeming them immaterial or not properly presented, the judgment is affirmed. Affirmed. Mr. Chief Justice McBride and Mr. Justice Bamsey concur. Mr. Justice Burnett concurs in the result.