Arnold v. Gardiner Hill Timber Co.

• Decision Date: 12 November 1953
• Citation: 263 P.2d 403,199 Or. 517
• Parties: ARNOLD v. GARDINER HILL TIMBER CO.
• Court: Oregon Supreme Court

Page 403

263 P.2d 403

199 Or. 517

ARNOLD v. GARDINER HILL TIMBER CO.

Supreme Court of Oregon.

Argued Oct. 14, 1953.

Decided Nov. 12, 1953.

Berkeley Lent, Portland, argued the cause for appellant. On the brief were Nels Peterson and Frank H. Pozzi, Portland.

Paul E. Geddes, Roseburg, argued the cause and filed a brief for respondent.

Before LATOURETTE, C. J., and WARNER, TOOZE and PERRY, JJ.

TOOZE, Justice.

This is an action for damages for personal injuries allegedly caused by the negligent operation of a sawmill, brought by Ishum Arnold, as plaintiff, against Gardiner Hill Timber Company, a corporation, as defendant. The case was tried to a jury, resulting in a verdict in favor of defendant. Judgment was entered accordingly, from which plaintiff appeals.

Plaintiff prosecuted his action under two theories of recovery; viz.: (1) commonlaw negligence, and (2) violation of the Employers' Liability Act, §§ 102-1601 to 102-1606, O.C.L.A. The trial court submitted both theories to the jury.

Plaintiff was injured on or about July 19, 1951, while working for defendant at its sawmill near Gardiner, Oregon.

The sawmill of defendant was a small one known as a double circular mill. It was equipped with double head saws installed along the side of a carriage track which was some 50 feet in length. The front of the saws is designated as the edge where the logs starts when being cut, and the back is that edge where the lumber issues. Extending from the back side of the saws for some distance was a transfer chain, sometimes called a conveyor chain, which ran parallel with and next to the carriage tracks and about two and one-half feet higher than the tracks. The lumber from the headsaws came out on this transfer clain which on its top side ran away from the saws and on the underside ran toward the saws. Plaintiff was employed as an off-bearer working on this transfer chain.

The headsaws were installed vertically, parallel, and outside the tracks, with the one saw almost directly above the other. The lower one was set partially into the flooring with a small opening in the floor to accommodate the saw and to permit some sawdust to fall through the hole. Between the tracks and on the front side of the saw was an opening in the flooring about three feet from the saws themselves. It was about two feet square with a drum inside the opening, and was for the purpose of putting sawdust into. The dust was then carried away by a conveyor chain below it, which ran at right angles to the tracks.

The underside of the saw, below the floor, was guarded from the transfer chain and other conveyors by timbers, boards, or 'stoppers' which made it impossible for any scrap material or other debris to be carried by the transfer chain or other conveyors into the saw from the underside.

At the time of the injury of plaintiff, the saws had been reduced to idling speed, and no cutting was being done. The plaintiff and others were cleaning around the carriage tracks. The plaintiff was standing between the tracks on the back side and about four feet from the saws, facing them. He was shoveling sawdust from between the tracks and throwing it with his shovel past the face of the saw toward the sawdust hole which was located in front of the saws a distance of about three feet. He testified that he saw a glimpse of something and was hit, but did not attempt to identify what hit him until he looked around after the accident. He then believed it to have been a piece of slab. Neither he nor anyone else specifically saw anything thrown from the saws.

The aluminum shovel which he was using was introduced as defendant's exhibit 2. It was cut and showed evidence of sawteeth marks in the metal scoop. Several teeth of the saws themselves were broken. A. A. St. Onge, an independent sawmill designer, and Lester Johnson, mill foreman, in effect testified that it would take metal against metal to break the teeth. It is presumed, therefore, that the shovel in some manner made contact with the saws. It was found some little distance from the plaintiff after the accident occurred.

The defendant's answer admitted and the evidence on the trial proved that the work in which plaintiff was engaged involved risk and danger within the meaning of the Employers' Liability Act, thereby making provisions of that law applicable to this case. Plaintiff charged defendant with negligence in the following respects:

'1. In ordering this plaintiff to clean around said saw while said saw was not disengaged from its power.

'2. In failing to warn this plaintiff of the dangers attendant on said work.

'3. In failing to place guards around said saw in order to prevent pieces of wood from being caught therein.

'4. In failing to furnish this plaintiff with a face shield.

'5. In failing to have the area immediately surrounding said saw and particularly the space between the deck and the transfer chain boarded up.

'6. In failing to have a stopper under said transfer chain to prevent pieces of scrap lumber and debris from being carried back from the chain to said saw.

'7. In failing to provide this plaintiff with a reasonable [sic] safe place in which to work, but instead under the circumstances hereinbefore set forth.

'8. In failing to use every device, care and precaution practicable to be used which would not have impaired the efficiency of said operation, in that defendant could have disengaged said saw from its power before requiring this plaintiff to clean the debris and scrap lumber under and around said saw and transfer chain, could have warned said plaintiff of the dangers attendant upon said work, could have placed guards around said saw, thereby preventing pieces of wood from being caught therein and thrown therefrom, could have furnished this plaintiff with a face shield, could have had the area immediately surrounding said saw, and particularly the space from the deck to the transfer chain, boarded up, could have had a stopper under said transfer chain to prevent pieces of scrap lumber and debris from being carried back from the chain to said saw, and could have provided this plaintiff with a reasonably safe place in which to work in that defendant could have provided said safeguards [sic] as heretofore alleged.'

By its answer defendant denied the alleged negligence charged against it and affirmatively alleged that plaintiff's injuries were caused solely by his own negligence in certain respects as specifically charged. Plaintiff denied this negligence in his reply.

During the course of the trial and as a part of plaintiff's case in chief, questions arose concerning certain provisions of the Safety Code for Sawmill, Woodworking and Allied Industries of Oregon, effective January 2, 1946, and as adopted and promulgated by the State Industrial Accident Commission of this state, pursuant to the authority vested in it by §§ 102-1228 to 102-1246, O.C.L.A.

Over defendant's objections, the court admitted into evidence three of such provisions reading as follows:

'1.6 'Shall' and 'Must' are used to indicate the provisions which are mandatory.'

'6.38 c. A clutch, friction or other effective method of disengaging the head rig saws from the power unit shall be installed on all head rigs where the power unit is not directly controlled by the sawyer. The saws shall be disengaged from the source of power while repairs or changes are made.'

'7.17 c. Brackets or edging supports shall be installed between the saw and the side of the husk.'

At the outset, it should be stated that the provisions of the Safety Code apply to the defendant in the operation of its sawmill. By statute it is made the duty of the State Industrial Accident Commission to make, establish, promulgate, and enforce all necessary and reasonable rules, regulations, and provisions to render safe the place of employment, and to protect the life and safety of every employe. When such rules and regulations are duly established and promulgated, they have all the force and effect of law, and employers are charged with the duty of obeying them when they apply to their particular operation. §§ 102-1228, 102-1229, 102-1231, and 102-1232, O.C.L.A. Section 102-1232, O.C.L.A. specifically provides in part that the Commission shall have the power:

'(1) To declare and prescribe what safety devices, safeguards or other means or methods of protection are well adapted to render the employees of every employment and place of employment safe as required by law or lawful order.'

A violation of a duly established mandatory rule and regulation of the Safety Code constitutes negligence per se. Such a violation may be charged as negligence under the Employers' Liability Act, and as common-law negligence. Baldassarre v. West Oregon Lumber Co., 193 Or. 556, 561, 239 P.2d 839; Varley v. Consolidated Timber Co., 172 Or. 157, 165, 139 P.2d 584.

Two of plaintiff's assignments of error on this appeal relate to the foregoing provisions of the Safety Code.

Plaintiff's first assignment of error is directed to certain testimony admitted over his objection, and his third assignment of error is directed to the refusal of the court to give a certain instruction requested by him. We shall first discuss the third assignment of error, inasmuch as what we say in that connection will largely determine the validity of plaintiff's claim under his first assignment.

Plaintiff assigns as error the refusal of the court to give the following requested instruction:

'You are instructed that on July 19, 1951, the Safety Code for Sawmill, Woodwork [sic] and Allied Industries of Oregon was in effect and had the force and effect of law.

'Violation of this Safety Code by defendant...