Evansen v. Grande Ronde Lumber Co.

Opinion by Mr. Chief Justice Moore. 1. It is maintained that an error was committed in overruling the demurrer. The defenses interposed are allowable, unless the Employer’s Liability Act has eliminated them. When an action is brought by an administrator to recover damages for the death of his intestate, alleged to have been caused by the defendant’s negligence, and the amount of the judgment demanded is limited to $7,500, it is believed that the provisions of the Employer’s Liability Act are thereby waived, and reliance is placed upon the statute as it existed prior to the enactment referred to, thus rendering the cause of action liable to the defenses set up herein: Section 6946, L. O. L. No error was committed as alleged. The evidence shows that the defendant owns at Perry, Oregon, a sawmill, where it manufactures lumber from logs which are cut in the Blue Mountains and transported over the defendant’s railway to Hilgard, and thence over the line of the Oregon-Washington Railway & Navigation Company to the mill. The grade of the defendant’s railway is quite steep in some places, and, in order safely to transport logs, the flat cars used for that purpose contain air-brakes that are operated by the engineer in charge of the locomotive. Each car has a supplemental reservoir, called a retainer, which when filled with air from the engine, will maintain adequate pressure upon the brakes from four to eight minutes. The vehicles used for hauling logs are flat cars usually longer than the load transported. Near each end of the cars are placed iron cross-bunk — 5 — ers, in each end of which are inserted short iron standards. A derrick is generally employed to load on cars logs, only two of which, if large, are placed in the lower course, but, if smaller logs are taken, three are then used. Across the lower layer of logs on each car extend chains, called wrappers, that are fastened to clevises in the iron standards, and wooden wedges are driven beneath the outer logs in order to tighten the wrappers so as to keep the load from slipping on the deck of the cars. When reaching the level, after descending the mountains with a train-load of logs, it was occasionally the practice of brakemen to pass over cars and turn down the retainers, thereby allowing the compressed air to escape. On December 22, 1913, as a train loaded with logs, having the locomotive in front backing, had nearly reached the level, the engineer, glancing back, saw Brodreskift walking toward him on the top of logs, and soon thereafter the engineer, again looking in that direction, observed logs falling, whereupon he immediately halted the train, and employees going back found Brodreskift lying on the ground, having sustained a fracture of the base of the skull, from the effects of which he instantly died. It was further discovered that the wrapping chain on the front end of a car had been broken about three links from the standard on the right side, and that the rear standard on the left side was also broken. Whether Brodreskift fell from the car, or jumped, or was thrown off, is not known. When found, he was lying with his head toward the car, and about six feet from it. No fallen log was nearer than two feet from him. His hat, however, was found on the ground among the logs. The testimony of plaintiff’s witnesses tended to show that, at the time Brodreskift lost his life, he — 6 — was employed by tbe defendant as a brakeman upon its logging train, and was performing bis required duties in going over the loaded cars while in motion to release tbe retainers, thereby preventing tbe train from being baited on tbe level, when tbe wrapping chain broke, and be was killed. 2, 3. Ed Bean, tbe superintendent of tbe defendant’s logging department and railway, testified that be bad charge of this branch of tbe work; that be was absent from December 1,1913, to February 1,1914, but before leaving be bad issued verbal rules and instructions to tbe employees engaged in tbe train service, which rules were in effect when be returned; that these instructions were obeyed; and that it was not tbe duty of any of tbe train crew to travel over tbe cars while in motion. In this connection be was asked: “State whether or not it was necessary for them [referring to members of tbe train crew] to travel over tbe cars when they were in motion.” An objection, interposed to this command on tbe ground that tbe answer sought was incompetent, irrelevant and immaterial, was overrided, and an exception allowed, whereupon tbe witness answered, “It was not”; and it is contended that an error was thereby committed. It is argued that the question to be considered was whether or not it was tbe duty of tbe deceased to pass over loaded cars when they were in motion, and that in permitting Bean, who did not see tbe accident, to state upon oath that there was no necessity for a brakeman to travel over moving cars loaded with logs, was allowing tbe witness to express an opinion upon a matter not requiring any particular skill, thereby disclosing tbe competency of tbe jury to determine tbe matter. Did tbe wrapper chain break by reason of tbe — 7 — defendant’s negligence? was the principal issue to he determined. After the happening of almost any accident, alleged to have been caused by negligence, it is possible for interested persons to testify that some other method of performing the work in which the servant was engaged when he was hurt could have been pursued; and hence it was unnecessary for him to have taken the position which he occupied at the time he was injured. It is manifest from the testimony that in order to prevent the train from coming to a standstill when it reached the level, after descending the mountain, it was expedient, at least, that the retainers should be turned down when the cars were in motion. “Necessity,” as the term was used in the question complained of, evidently meant an inquiry as to whether or not it was indispensable that the retainers should be turned down when the cars were in motion, or whether some other method could have been adopted or some different condition of the train selected where the pressure upon the brakes could have been safely released. It is possible that such service could have been performed in a manner different from that pursued by Brodreskift, but because this might have been done does not disprove the fact that he followed the usual and ordinary course in discharging a duty. Men engaged in the railroad service are experts in that branch of transportation, and may express opinions upon questions in relation thereto when the inquiry involves matters not within the knowledge of ordinary jurors: Lawson, Ex. Ev. (2 ed.), p. 91. In Galveston etc. R. Co. v. Bohan (Tex. Civ. App.), 47 S. W. 1052, 1053, it was decided that a witness who was an expert in the case of railroad tracks, and had — 8 — had many years’ experience as section foreman, was competent to testify as to the necessity of a track walker in a particular freight-yard, although he had not worked in such yard within two years. In deciding that case, Mr. Chief Justice Garrett remarks: “The engineer, fireman, brakeman, conductor, section foreman and experienced men in other departments may testify as to what is usual, customary or necessary to be done in their special lines of work.” In Nowell v. Wright, 3 Allen (Mass.), 166 (80 Am. Dec. 62), it was ruled that, in receiving the opinion of tenders of drawbridges as to the necessity of keeping the gates of the bridge shut and hanging out lanterns while the draw was open in the night-time, the trial court committed error. In Chicago etc. R. Co. v. Cummings, 24 Ind. App. 192 (53 N. E. 1026), which was an- action to recover damages caused by the defendant’s alleged negligence in unnecessarily sounding a locomotive whistle, it was held that the opinion of an engineer that the blowing of a whistle at the time and place mentioned was unnecessary was incompetent. In Lane v. New York etc. R. Co., 93 App. Div. 40 (86 N. Y. Supp. 947), in allowing an expert witness to testify that rules suggested by him were necessary, it was determined that an error had been committed, and that it was competent for the jury, when all the facts and circumstances bearing upon the situation had been placed before them, to determine the question for themselves. In New York Electric Equipment Co. v. Blair, 79 Fed. 896 (25 C. C. A. 216), which was an action to recover damages alleged to have been caused by the defendant’s negligence in hoisting pipes, it was con9 eluded not to be competent for a witness, called as an expert, to state whether it was necessary, in the proper performance of duty in hoisting pipe, that certain specified precautions should be taken, since the question was one which the jury could determine upon a statement of the facts. To the same effect, see, also, Meyers v. Highland M. Co., 28 Utah, 96 (77 Pac. 347). It is quite probable that, if directly asked, Mr. Bean could have said the retainers might have been turned down when the train came to a stop for that purpose; but, however this may be, the witness, as superintendent of the defendant’s railway and logging department, was undoubtedly qualified to express an opinion, and, having testified that it was unnecessary for the brakeman to pass over the loaded cars when in motion, it is not believed that the answer to the question objected to prejudiced the plaintiff’s rights. 4. The witness Bean was permitted, over objection and exception, to testify that during the 12 years he had been employed by the defendant he had never known a wrapper chain to be broken while a train of cars loaded with logs was descending the mountains, except in the particular instance when Brodreskift was injured, and it is insisted that an error was thereby committed. It is argued that Bean was absent from the logging camp about three months during which time the injury complained of occurred; that it does not appear that he accompanied the train on each trip that was made; and that this species of proof is an attempt to make the superintendent’s lack of knowledge positive evidence of due care. It must be conceded that negative testimony, if permitted to be given by a person who did not perceive a fact, the existence of which is the subject of judicial investigation, ordinar — 10 — ily affords no evidence that the incident did not occur as alleged. The testimony of a single reputable witness, who states that he saw a crime committed by the person charged therewith, will outweigh the testimony of a multitude, who may assert that they did not see the person charged perpetrate the offense. This rule of evidence, however, can, upon principle, have no application to a person whose duty, as superintendent of a business enterprise or a department thereof, is to observe and note the happening of events which tend to promote or retard the work in which he is engaged, in order that he may guard against a repetition of the incidents which hinder the operation. It was the particular province of Mr. Bean to know whether or not a wrapper chain had ever been broken when a loaded train was descending the mountain, and his testimony on that subject was proper, assuming, as we must, that ample opportunity was given for cross-examination as to his means of acquiring the information of which he testified. 5. The testimony received tended to show that, in loading logs after the lower layer had been placed on the ears and secured by wrappers, other logs put on the top of the load would be dropped some distance, occasionally breaking the chains, which fractures were temporarily repaired at the logging camps by improvised links made of baling wire. In referring to such repairs, Mr. Bean was asked: “And what was the relative strength of that mass of baling wire between the links in comparison with the link?” An objection to the inquiry made on the ground that it was incompetent, irrelevant and immaterial, and that the witness was not shown to be qualified to answer the question, was overruled, and the superintendent replied: “It — 11 — made it stronger than the link. ” It is maintained that the answer given interfered with the province of the jury, and was erroneous. The hill of exceptions does not purport to set out any of the testimony tending to show what Mr. Bean’s qualifications as an expert were, except that he had many years’ experience as the defendant’s superintendent. From this circumstance alone, and in the absence of any testimony on the subject, it will be taken for granted that he was competent and qualified to state the relative strength of the wire link, and that ordinary jurors had no general knowledge of the subject. 6. George Stoddard, the defendant’s general manager, in referring to the chains used as wrappers, was permitted, over objection and exception, in answer to the question, “Where did you get them?” to say: “They come through the Marshall-Wells Hardware Company of Portland. “Q. What are these chains called in commerce? “A. American steel-proof test-proof chains. “Q. Do you know whether they are blacksmith-made or factory-made? “A. I suppose factory-made. * * “Q. Now, then, you may state from your knowledge whether these chains come from a reputable factory for making chains of that character. “A. Yes, they do.” Based on this and other testimony the court charged the jury as follows: “I instruct you that it is the master’s duty to exercise reasonable care only. It is not sufficient to show that defendant might have had better or safer machinery or methods than the ones it uses, nor was he bound to adopt every latest improvement. It is a well-settled rule that, when an appliance has been in daily use — 12 — for a long time and proved safe, (and) its use may continue without the imputation of want of care. So that if you find from the testimony that the chains used by defendant in this case in binding its logs on its cars broke at time of such accident, and that the same caused the death of Andrew Brodreskift, and you further find that such chain was purchased of a reputable manufacturer, manufactured for the purposes defendant used same, and that such breakage was from some hidden defect which was undiscoverable by ordinary inspection, then the defendant was not guilty of negligence, and your verdict should be for defendant.” An exception having been taken to this instruction, it is contended that an error was committed in giving it. An examination of the language employed will show that if the word “and,” indicated by parentheses, be retained, a part of the sentence was evidently omitted by the official reporter. If, however, the stenographer inadvertently included that word the remaining part of that sentence, “its use may continue without the imputation of want of care, ” as a declaration of a legal principle, is not universally true. A chain may have been in daily use for a long time and proved safe, and yet such employment so impaired its strength that a continuation of the use would become extremely dangerous. The idea undertaken to be expressed by the language referred to was evidently obtained from the case of Sappenfield v. Main St. etc. R. R. Co., 91 Cal. 48, 57 (27 Pac. 590, 592), where it is said: “It is a well-settled rule that when an appliance or machine, not obviously dangerous, has been in daily use for a long time, and has uniformly proved safe and efficient, its use may be continued without the imputation of imprudence or carelessness.” — 13 — The rule thus referred to may be controlling in some cases, but the omission from the instruction challenged of the phrase “not obviously dangerous,” as set forth in a part of the opinion quoted, renders the charge complained of inapplicable. It is possible that a careful examination of the links would have disclosed that use had not worn them, and for that reason the chain was not obviously dangerous. But, however this may be, the part of the charge to which attention has been called did not correctly state the law. 7. The purchase of a chain from a reputable manufacturer who makes such instrumentalities for the purpose for which it was used by the defendant did not avoid the necessity of a careful examination of each link by some person competent to judge of its fitness for the utmost strain that was likely to be placed upon the chain: Morton v. Detroit etc. R. Co., 81 Mich. 423, 433 (46 N. W. 111). The instruction complained of, and many other alleged errors that have been assigned, have been carefully considered; but when viewed in connection with the entire testimony, instructions, etc., which are attached to and made a part of the bill of exceptions, it is believed that no prejudicial error was committed at the trial. 8. No person saw Andrew Brodreskift when he was hurt, and, as he instantly died, it was impossible for plaintiff’s counsel accurately to determine the proximate cause of his injury. A careful examination of the entire testimony convinces us that, notwithstanding the matters referred to as alleged errors, the jury properly determined that the defendant was not negligent, as averred in the complaint. — 14 — 9. Since this opinion was written, the case of Niemi v. Stanley Smith Lumber Co., post, p. 221 (149 Pac. 1033), has been decided on rehearing, holding an administrator an incompetent party to maintain an action to recover damages for the death of his intestate, when alleged to have been caused by the negligence of his employer. Observing the rule established in that ease, we conclude that the plaintiff herein was not entitled to maintain this action, and as to him the judgment must be and is affirmed. Affirmed.