Barrow v. B.R. Lewis Lumber Co.

• Decision Date: 30 April 1908
• Citation: 14 Idaho 698,95 P. 682
• Parties: PETER BARROW, Respondent, v. B. R. LEWIS LUMBER CO. et al., Appellants
• Court: Idaho Supreme Court

95 P. 682

14 Idaho 698

PETER BARROW, Respondent, v. B. R. LEWIS LUMBER CO. et al., Appellants

Supreme Court of Idaho

April 30, 1908

PERSONAL INJURIES-NONSUIT-RAILWAY AND LUMBER CORPORATIONS-MASTER AND SERVANT-ASSUMPTION OF RISK-DEFECTIVE ROADBED-DEFECTIVE APPLIANCES-NOTICE AND KNOWLEDGE OF DEFECTS-EXPERIENCE OF EMPLOYEE-INSTRUCTIONS CONSIDERED AS A WHOLE.

1. Where the certificate to a transcript is defective and a motion to dismiss the appeal is made for that reason, and a corrected certificate is offered at the hearing of the motion, the motion will be denied.

2. Held, that the court did not err in overruling defendants' motion for a nonsuit at the close of plaintiff's evidence.

3. When a motion for a nonsuit is made at the close of plaintiff's evidence and is denied, and the defendant thereafter submits evidence in support of his defense, he waives his motion for a nonsuit unless he renews it at the close of all the evidence.

4. Held, under the facts of this case that the plaintiff when acting as brakeman was acting in the capacity of a servant for the railroad company as well as for the lumber company.

5. A corporation that maintains a railway as a part of its lumber manufacturing plant is bound to exercise ordinary care, to the end that such road shall be so constructed and maintained as to be reasonably safe as a place of work for its employees.

6. Where the injured servant has had no experience, or virtually none, in dealing with conditions similar to those which he was required to encounter in his employment, he does not assume the risk connected therewith, which risk he would have been conclusively presumed to appreciate and assume if he had been engaged for a sufficient length of time in discharging similar duties under similar circumstances to understand the risk and appreciate the defects in the machinery with which he is working.

7. Instructions must be considered together and as a whole, to the end that they may be properly understood, and when so construed, if they fairly and fully state the law applicable to the evidence, the giving of them is not error, although detached sentences or separate charges considered alone might be erroneous or misleading.

(Syllabus by the court.)

APPEAL from the District Court of First Judicial District for Kootenai County. Hon. William W. Woods, Judge.

Action to recover for personal injuries. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of the respondents.

Chas L. Heitman, and Frank T. Post, for Appellants.

The plaintiff knew the condition of the roadbed. He had walked over it the day before. He was of mature years, experienced and intelligent. If there were any risks because of failure to ballast, he assumed them. (Drake v. Railway Co., 2 Idaho 487, 21 P. 560; Zienke v. Northern Pacific Ry Co., 8 Idaho 65, 66 P. 828; Griffin v. Railway Co., 124 Ind. 326, 24 N.E. 888; Larsson v. McClure, 95 Wis. 533, 70 N.W. 662; Day v. Cleveland etc. Ry. Co., 137 Ind. 206, 36 N.E. 854.)

When the servant appreciates the dangers, or when the dangers are such that men of his trade or business would appreciate them, the master is not called upon to warn or instruct. He has the right to assume an appreciation of the dangers. The risks are assumed and no recovery can be had against the master. (King v. Morgan, 109 F. 446, 48 C. C. A. 507; Northern P. Ry. Co. v. Blake, 63 F. 47, 11 C. C. A. 93; Louisville & N. R. Co. v. Boland, 96 Ala. 626, 11 So. 669, 18 L. R. A. 260; Fletcher v. Philadelphia Traction Co., 190 Pa. 117, 42 A. 527; Cassaday v. Boston & A. R. Co., 164 Mass. 168, 41 N.E. 129.)

It has never been held that it is the duty of the master to provide the servant with a safe place to work and that failing so to do is negligence on the part of the master. Under such an instruction, a jury in any case where the servant is injured is bound to find a verdict for the plaintiff. (Hughley v. City of Wabasha, 69 Minn. 245, 72 N.W. 78; International & G. N. R. Co. v. Williams, 82 Tex. 342, 18 S.W. 700; Probst v. Delamater, 100 N.Y. 266, 3 N.E. 184.)

The court committed error in refusing to give instruction No. 7 requested by defendants. This is an instruction on the subject of assumption of risk, and is an accurate statement of the law. Failure to give it was clearly prejudicial error. (Day v. Cleveland etc. Ry. Co., 137 Ind. 206, 36 N.E. 854; Bundy v. Union Iron Wks. (Wash.), 89 P. 545; Ragon v. Toledo Ry., 97 Mich. 265, 37 Am. St. Rep. 336, 56 N.W. 612; Brown v. Ore. Lbr. Co., 24 Ore. 315, 33 P. 557.)

The court erred in refusing to give instruction No. 8 requested by the defendants, to the effect that plaintiff is presumed to know what lumber-jacks, having the experience in the business that plaintiff had, would ordinarily know on the subject of taking a trainload of logs down a steep grade, without a locomotive, and that if such lumber-jack knew the same was dangerous, he would assume the risk thereof. (Peterson v. New Pittsburg C. & C. Co., 149 Ind. 260, 63 Am. St. Rep. 289, 49 N.E. 8; Saucier v. New Hampshire Mills, 72 N.H. 292, 56 A. 545; Fletcher v. Philadelphia Trac. Co., 190 Pa. 117, 42 A. 527.)

R. E. McFarland, for Respondent.

The introduction of evidence by defendants, after the overruling of a motion for a nonsuit for insufficiency of plaintiff's evidence, waives error, if any, in overruling the motion. (Chamberlain v. Woodin, 2 Idaho 642 (609), 23 P. 177; Shields v. Johnson, 12 Idaho 329, 85 P. 972.)

It is the duty of the master to furnish his servant with a safe place in which to work, and with safe and suitable implements and tools with which to perform said services, and when the master negligently fails to do so and the servant is injured without any fault or negligence on his part, the master is liable. (Wiest v. Coal Creek R. Co., 42 Wash. 176, 84 P. 725; Adams v. Bunker Hill & S. Mining Co., 12 Idaho 637, 89 P. 624, 11 L. R. A., N. S., 844; Crawford v. Lumber Co., 12 Idaho 678, 87 P. 998; Reeve v. Colusa G. & E. Co., 151 Cal. 29, 92 P. 89; Brunger v. Pioneer Roll Paper Co., 6 Cal.App. 691, 92 P. 1043; Stephens v. Elliott (Mont.), 92 P. 45; Wilder v. Great Western Cereal Co., 130 Iowa 263, 104 N.W. 434; Bird v. Utica Gold Min. Co., 2 Cal.App. 674, 84 P. 256; Jancko v. West Coast M. & I. Co., 40 Wash. 230, 82 P. 284; Dossett v. St. Paul & Tacoma L. Co., 40 Wash. 276, 82 P. 273; 4 Thompson on Negligence, 4021; 1 Labatt on Master and Servant, 67; Calloway v. Agar Packing Co., 129 Iowa 1, 104 N.W. 721; Clark v. Wolverine Cement Co., 138 Mich. 673, 101 N.W. 845; Mumford v. Chicago R. I. & P. Co., 128 Iowa 685, 104 N.W. 1135; Williams v. Ballard Lumber Co., 41 Wash. 338, 83 P. 323.)

The employer is equally liable whether he constructed the track through his own agents, or acquired it, after its completion by another party. (1 Labatt on Master and Servant, sec. 67 et seq.; 4 Thompson on Neg., 4021; Stephens v. Elliott (Mont.), 92 P. 45.)

"In many instances where the injured servant had had no experience, or virtually none, in dealing with conditions similar to those which he was required to encounter, it is deemed unwarrantable to take the case from the jury, or over-ride a verdict in his favor, although it may be certain that the risk to which the injury was traceable was one which he would have been conclusively presumed to appreciate if he had been engaged for a longer time in discharging similar duties under similar circumstances, either for the defendant or for some other employer." (1 Labatt on Master and Servant, secs. 395 et seq. and 402 et seq.; 4 Thompson on Neg., 4021; Mumford v. Chicago R. I. & P. Ry. Co., 128 Iowa 685, 104 N.W. 1135; Stephens v. Elliott (Mont.), 92 P. 45.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This action was brought to recover for personal injuries alleged to have been sustained by reason of the negligent and careless operation of a logging train on the Idaho & Northwestern Ry. Co. line of road. A motion was made to strike the transcript from the files and dismiss the appeal, for the reason that the transcript was not certified as required by law. At the hearing a corrected certificate was offered and the motion was denied. Where the certificate to a transcript is defective and a motion to dismiss the appeal is made for that reason, and a correct certificate is presented and offered at the hearing of the motion, the amended certificate will be admitted and allowed and the motion to dismiss denied.

It appears from the record that the B. R. Lewis Lumber Co. and the Idaho & Northwestern Ry. Co., who are appellants here, are corporations, the former organized and existing under the laws of the state of Washington and doing business in the state of Idaho, and the latter organized and existing under the laws of the state of Idaho and doing business in this state. We shall hereafter refer to the first-named corporation as the Lumber Company, and the latter corporation as the Railroad Company.

It appears from the record that the capital stock of the railway corporation is divided into 600 shares, and that the Lumber Company is the owner of 595 of said shares. It appears, also that the respondent was employed by the Lumber Company to drive teams and to cut and skid logs, and worked at that labor for a period of three days, when the company directed and required him to suspend such work and to perform services as a brakeman upon the logging train of said Railroad Company. It appears that the grade of said railroad was about five per cent and that it was the custom of said company to load the cars with logs and then bump them off and send them down the track without a locomotive; that the respondent had assisted in taking one or two trains of logs down said...