Niemi v. Stanley Smith Lumber Co.

Department 1. Mr. Justice Benson delivered the opinion of the court. It is conceded by the parties that the plaintiff’s action is based upon defendant’s liability at common law. There are two assignments of error. 1. Defendant first contends that the trial court erred in denying a motion for a nonsuit. This contention is based upon the grounds: First, that there is no evidence tending to prove any negligence upon the part of defendant in selecting the gin tree, or using it for the purpose to which it was applied. It is not necessary to go into the evidence extensively upon this point, but it is sufficient to say that, while there is some conflict in the testimony, one witness who examined the remains of the tree after the accident says that “it was a dead tree; it showed that it had been dead for some time. ” The evidence also discloses that the cable had been attached during the preceding fall, and we think that it was a question for the jury to answer as to whether defendant had been negligent in the selection thereof. [225] 2. Defendant next insists the negligence alleged by plaintiff was not the proximate cause of the injury complained of. It is true that the tree Was not broken by the use for which the tree was selected and used, but by the falling of a tree across one of the guy wires, which act defendant contends should be regarded as the proximate cause. It is not always easy, in a particular instance, to place a finger upon a specific act, and safely say: ‘ ‘ This is the act which directly produced a given result.” In this case the successive steps are that defendant selected a certain tree to carry a cable, and stayed the same with guy wires. The decedent felled a tree which struck a guy wire, breaking the gin tree, of which a falling limb struck and killed him. If Laine had not felled the tree so that it struck the guy wire, the gin tree would not have broken, and the falling limb would not have caused a death. But, if the guy wire had not been attached to a defective tree, it may be that no accident would have happened. The falling tree striking the wire, the impact breaking the gin tree, and the falling limb killing the man, might, we think, be classed as an unbroken chain of causal events. As is said by Mr. Justice Lord, in the case of Hartvig v. Northern Pac. L. Co., 19 Or. 525 (25 Pac. 359): “ ‘Whether the injury in a particular case was such natural and proximate result of the wrong complained of is ordinarily for the decision of the jury.’ * * It is their province to look at the facts as they transpire, and ascertain whether they are naturally and probably connected in orderly sequence with the prime cause, or disconnected by some intervening agency affecting its operation. ’ ’ Under the evidence we think that this question was properly submitted to the jury. [226] 3. We shall now consider defendant’s contention that contributory negligence is conclusively disclosed by plaintiff’s evidence. It appears from the record that Laine and a fellow-workman had been cutting trees all day, in the same vicinity, under the direction of a foreman. A short time prior to the falling of the tree which struck the guy wire, they had felled another tree which had lodged against a hemlock. The last tree which was cut, and fell against the guy wire, stood about 40 feet away from the gin tree, and about midway between two guy wires, which were 10 feet apart. A short distance beyond this tree, and also midway between the guy wires, stood the hemlock, with the cut tree lodged against it. Before felling the last tree Laine asked the foreman if he should not cut the hemlock, hut the foreman said, “No.” The surviving workman, Kyllonen, says at one time that they felled the last tree in such a manner as to dislodge the tree which was leaning against the hemlock. At another time he says: “We tried to fall it straight between the guy wires.” Taking this evidence into consideration, we are forced to the conclusion that it was for the jury to say whether there was contributory negligence. 4. We come, then, to the question of the assumption of risk, and this problem is closely connected with that of proximate cause. If the jury should find that the attaching of the cables and guy wires to a defective tree was a link in a continuous chain of causes without a break, and that defendant was negligent in the matter of furnishing decedent with a safe place to work, then it would also he their duty to determine whether or not the danger arising from such negligence was so open and apparent that the servant should have known it and therefore assumed the risk. [227] Appellant’s second assignment is that the court erred in denying the motion for a directed verdict. What we have already said in regard to the motion for a nonsuit is equally applicable to this; and the judgment must be affirmed. Affirmed. Rehearing Granted. Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice McBride concur.