Anderson v. Northern P. Lumber Co.

• Decision Date: 17 November 1891
• Citation: 21 Or. 281,28 P. 5
• Parties: ANDERSON v. NORTHERN PAC. LUMBER CO.
• Court: Oregon Supreme Court

28 P. 5

21 Or. 281

ANDERSON v. NORTHERN PAC. LUMBER CO.

Supreme Court of Oregon

November 17, 1891

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action by Gustaf Anderson against the Northern Pacific Lumber Company for personal injuries. Judgment for plaintiff for $2,750. Defendant appeals. Affirmed.

(Syllabus by the Court.)

A defendant waives his objection to any ruling of the court with reference to the form of the pleading by answering and going to trial.

As a general rule, the question of negligence is a question of fact, and not of law. When the care exercised by the plaintiff at the time of the injury and the negligence of the defendant are of a complex character, depending upon particular circumstances of fact, which require to be compared and weighed to determine the fact of negligence, the case is for the jury, whose province it is to find the facts.

Where the right determination of the cause depends upon the effect or weight to be given to the evidence, it is for the consideration of the jury, under proper instruction from the court as to the law, and a cause should not be taken from the jury unless the evidence at the trial, and all reasonable inferences of which it is susceptible, are insufficient to support a verdict for the plaintiff.

It is the duty of the court to instruct the jury upon every point relevant to the issue and either party has the right to have the jury so instructed, plainly and pointedly, so as to avoid liability to mistake or error; and if the court should fail so to instruct, it would be error to refuse instructions calculated to cure the omission.

Where the instructions of the court were a concise and accurate statement of the law applicable to the facts, and covered every point pertinent to the issue involved in the instructions asked, it was not error to refuse them.

M.C George, for appellant.

Williams & Wood, for respondent.

LORD, J.

This is an action to recover damages for injuries sustained by the plaintiff in the saw-mill of the defendant. In substance his complaint is that he was at work for the defendant in its saw-mill, and was directed by the foreman to work about certain "live rollers" in the mill; that while he was so at work, in the night-time, in consequence of the negligence of the defendant in not providing the necessary and usual light, and in consequence of certain teeth upon the rollers, which were wholly unnecessary and useless, and without any fault on his part, his foot was caught in these rollers, and a large part of it was torn off, whereby he was damaged, etc. A trial was had which resulted in a verdict and judgment for the plaintiff, hence this appeal.

The first error assigned is that the court below erred in overruling the defendant's motion to make the complaint more definite and certain in stating whether it was by reason of the defect alleged that the injury occurred. To this the answer is that the court did not overrule the motion, but allowed it, and the complaint was amended. The language to which the objection was made, as it originally appeared in the complaint, was this: "Plaintiff further alleges that the said roller by which plaintiff was caught as aforesaid was defective, unsafe, and dangerous, which fact was well known to the defendant; and that the defendant had neglected and refused to put them in a proper condition, by means of which carelessness and negligence on the part of the defendant as to said light and said rollers the plaintiff was injured as aforesaid." This allegation was amended by striking out the word "defective," and inserting after the word "dangerous" the words "in having upon them teeth or spikes, which were wholly useless and unnecessary," thus obviating the objection, and giving a clear and precise statement of the manner in which the plaintiff was injured, and the reason why the defendant is responsible for that injury. Besides, by answering and going to trial, the defendant waived its objections to any ruling of the court with reference to the form of the pleading. By doing this, the defendant admitted that the defect complained of was cured by the amendment, and that it needed no further information by making the complaint more definite than already made by such amendment, and that it accepted the amended complaint as it stood, and was prepared to meet it, provided, of course, it stated a cause of action.

The next error alleged is the refusal of the court to allow a nonsuit after the plaintiff had rested. This is the main contention for the defendant, and upon which its counsel presented an earnest and able argument. It is not possible to set out in extenso the testimony, but enough of it may be stated to determine whether there is any evidence upon which the jury could find a verdict for the plaintiff. There can be no doubt, if there is not sufficient evidence, it was the duty of the court to grant a nonsuit, as it would be an idle proceeding to submit evidence to the jury when they could justly find but one way only. On the other hand, if there is any legal evidence, in the judgment of the court, tending to prove the issue, it must go to the jury, for them to determine what weight shall be attached to it. The testimony for the plaintiff is directed to proving the two allegations upon which his complaint is grounded as the cause of his injury. The testimony for the plaintiff tends to show that he was taken from the place where he was employed in a comparatively safe occupation in the saw-mill of the defendant, and ordered to work on the trimmers, which was a much more dangerous occupation, and one in which he was inexperienced. That he objected to the change on account of the danger, but that the foreman insisted that he should do as he was ordered, and work at the trimmers, until another man could be procured for the place. That a part of the work which devolved upon him, after the lumber was trimmed and sent down to be carried off by the rollers, was to take a hand-spike, when a blockade or jam occurred, as sometimes happened, and press against the load, so as to push it along and down the chute. That the rollers were lifted up from their ordinary level or position by a lever when it was necessary to use them for sending the load of lumber along, and on the night the accident occurred there was a blockade, and the lumber would not go forward, so that it became necessary to use the hand-spikes to shove the load along. That the light over the roller where the injury occurred...