Blaine v. Ross Lumber Co.

• Decision Date: 21 September 1960
• Citation: 224 Or. 227,355 P.2d 461
• Parties: Clinton Ward BLAINE, Respondent, v. ROSS LUMBER COMPANY, Inc., Appellant.
• Court: Oregon Supreme Court

Page 461

355 P.2d 461

224 Or. 227

Clinton Ward BLAINE, Respondent, v. ROSS LUMBER COMPANY, Inc., Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted July 6, 1960.

Decided Sept. 21, 1960.

Hugh B. Collins, Medford, argued the cause for appellant. On the brief were Collins & Redden, Medford.

Charles W. Reames, Medford, argued the cause and filed the brief for respondent.

Before ROSSMAN, J., presiding, and PERRY, SLOAN, GOODWIN and HOLMAN, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant from a judgment in the sum of $20,000 which the circuit court entered in favor of the plaintiff upon the verdict of the jury. The action which gave rise to the judgment was based upon the Employers' Liability Law, ORS 654.305 to 654.335. The plaintiff, a logging truck operator, suffered injuries when a log which he was unloading at the defendant's mill fell from the truck and crushed his leg. The only assignment of error submitted by the defendant challenges the trial judge's denial of the defendant's motion for a directed verdict. However, the motion for a directed verdict was based upon several grounds.

The plaintiff was engaged in hauling logs for the Lewis Biden Logging Company. He obtained his load of logs at the logging site and hauled it over public roads to the defendant's mill which was located at Prospect. On arrival at the mill the logs were scaled and accepted. After the scaling the truck proceeded to the log dump which was 25 to 250 yards from the scaling shed, according to conflicting testimony. The evidence shows that logs are dumped from the truck into the mill pond with the aid of power-driven machinery which is operated in the manner which we will now describe. At the dump, next to the road, on the side which is away from the pond, there stands a shed which houses a winch. The latter has a drum upon which steel cable is wound and unwound. The cable is rigged from the drum to a pulley which is attached to a device known as an 'A-frame' which stands in front of the shed. The 'A-frame' possibly became known as such because its appearance is similar to the Capital letter 'A.' The cable normally hangs loose over the pulley and has a heavy steel hook at its end. The 'A-frame' is slanted so that it somewhat overhangs the road. At the edge of the road, and immediately opposite to the 'A-frame' there stands a large log, known as a 'brow log'; it forms a part of the log dump. Heavy steel cables are securely attached to the brow log and play an important part in lifting or rolling the logs off of the logging truck into the pond. When the truck has been placed in position for its unloading it stands between the brow log and the winch apparatus which we mentioned. As the truck stands in that position the cables that are affixed to the brow log are brought under the logs and are then hooked to the winch cable. That having been done, the cables are drawn tight under the load by means of the winch and the truck driver proceeds to unfasten the center binder chain. The center binder chain and its two companions were placed in position when the truck was loaded with its logs at the logging site. They hold the load of logs tightly together for the trip to the log dump. After the driver has unfastened the center binder chain more tension is placed on the lines and the end binders are then unfastened. If it develops in this operation that a log was improperly saddled upon the load of logs, and threatenes to fall toward the driver who is on the ground and adjacent to the load, the cables will protect him. After the binder chains are unfastened, the winch cable is tightened so as to lift the load and dump it over the brow log into the pond. When the logs have been dumped the winch is used to aid in loading the truck trailer onto the body of the truck for the return trip to the logging site for another load.

The unloading process was designed to be carried out by two men: one to operate the winch machinery and another--the driver--to unfasten the binder chains. The task of operating the winch had been delegated by the defendant to Oliver Hansen. It was also his duty to scale the logs as the trucks arrived at the plant, and this task kept him from operating the winch except at intermittent periods. Drivers testified that they sometimes waited at the log dump for periods of fifteen to forty minutes for Hansen's arrival. Since log truck drivers are paid by the load and not by the hour, they became impatient over the delay and this prompted them to form a habit of operating the winch machinery for one another or for themselves. There was ample evidence from which the jury could infer that this practice was known to the defendant. The mill superintendent, Martin, testified that he knew of the custom, but did not countenance it, and that when he heard of an incident he 'got ahold of the truck drivers and chewed them out and told them never to do it again.' However, several truck drivers testified that they had not been cautioned to leave the machinery alone, and there was no warning sign in the shed until after the accident. The defendant took no affirmative steps other than an occasional warning by Martin to discourage what the jury could have found was a common practice.

The accident which is the basis of this action occurred late in the afternoon. Hansen had scaled the plaintiff's logs and plaintiff had then proceeded to the log dump. There he found a driver named Smith who was hauling logs for one Charles Skeeters. The plaintiff and Smith did not know each other. Smith had dumped his load of logs, apparently by himself, and was preparing to load his trailer with the help of the winch. Plaintiff gave Smith assistance in this operation by positioning Smith's truck while Smith used the winch. Together they loaded the trailer, and then Smith proceeded to assist plaintiff in unloading his logs. Smith operated the winch, and tightened the cable under the load as was customary. While the plaintiff was removing the front binder chain Smith came out of the winch house to remove the rear chain. As they were casting the chains aside a log rolled from the top of the stack toward the men and the winch cable gave way. Smith was killed by the falling log and the plaintiff was injured.

The accident is explained by the brake system on the winch. The cable is tightened under a load of logs by winding the excess on a drum. To prevent the drum from unwinding, a friction hand brake is used. The brake is worked by a long handle which extends at one side of the machinery. In order to set the brake securely the winch operator must pull the handle down to the floor and stand on it, putting all of his weight on the handle. There was also a rope in the shed with which the handle could be tied to the floor, thus permitting the winch operator to work elsewhere. Although the cable drum had a ratchet at one side which would permit a 'dog' or positive mechanical locking mechanism to be used, no such mechanism was provided. Photographs in evidence indicate that there were two drums in the shed and that one of them--used for bringing logs out of the pond--had a positive locking device. The accident occurred because Smith, when he came out of the shed to help plaintiff release the binder chains, was not in a position to keep the brake set and had not tied the brake handle to the floor. Thus, the winch cable offered no resistance to the falling log.

Evidence shows that at the time of the accident the road which served as an unloading platform was soft and muddy. It indicates that logs struck the brow log as they were dumped and they left deposits of bark on the pond side of the road so that trucks parked for unloading were tilted toward the winch. This presented a further hazard to the workmen.

The Employers' Liability Law, ORS 654.305, provides:

'Generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employes or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices.'

A right of action is given for breach of this duty. There was ample evidence in the record to support a finding that additional precautions ought to have been taken for the safety of those required to work about the unloading machinery.

The complaint also set forth several sections of the Safety Code for Logging and other orders and regulations promulgated by the State Industrial Accident Commission pursuant to authority granted in ORS 654.005 to ORS 654.100. The jury might have found that several of these regulations had been violated by the defendant. A violation of the Commission's orders constitutes negligence per se and may be pleaded by the plaintiff in an action under the Employers' Liability Law. Arnold v. Gardiner Hill Timber Co., 1953, 199 Or. 517, 263 P.2d 403.

At the outset the defendant claims that plaintiff was an independent contractor rather than an employee of Lewis Biden Logging Company and was thus precluded by Helzer v. Wax, 1928, 127 Or. 427, 272 P. 556 and Saylor v. Enterprise Elec. Co., 1923, 106 Or. 421, 212 P. 477 from claiming the benefits of the Employers' Liability Law. If plaintiff was in fact an employee of Biden, then he is entitled to claim the benefit of the Act, since it has been construed to apply to employees of a person other than the defendant, if their work requires them to come within the risk of injury from the defendant's instrumentalities. Myers v. Staub, 1954, 201 Or. 663, 272 P.2d 203; Drefs v. Holman Transfer Co., 1929, 130 Or. 452, 280 P. 505; Rorvik v. North Pac. Lumber Co., 1920, 99 Or. 58, 190 P. 331, 195 P. 163; McKay v....