Brady v. Oregon Lumber Co.

• Decision Date: 09 February 1926
• Parties: BRADY v. OREGON LUMBER CO. ET AL.
• Court: Oregon Supreme Court

243 P. 96

117 Or. 188

BRADY v. OREGON LUMBER CO. ET AL.

Supreme Court of Oregon

February 9, 1926

Department 2.

Appeal from Circuit Court, Hood River County; Fred W. Wilson, Judge.

Action by Harry Elmer Brady against the Oregon Lumber Company and another. From a judgment of nonsuit, plaintiff appeals. Affirmed.

The plaintiff brought this action to recover damages for personal injuries resulting from the freezing of his feet while wading through snow. He was an experienced logger, and, for some weeks prior to sustaining the injury complained of, was in the employ of the defendant Oregon Lumber Company, a corporation engaged in logging and the manufacture of lumber. The lumber company's sawmill is at Dee, a station in Hood River county, Or., at a point on the Hood River Valley Railroad. Its logging camp was located on one of the northern slopes of the Cascade Mountains, about 16 miles from Dee, and at an elevation of about 2,200 feet. Between this camp and Dee it operated a logging railroad. At a point about halfway between the termini of the road is a siding or switchback which marks the site of a former logging camp known in the record as the "old camp." Charles Blanding, the company's codefendant, was foreman of the defendant corporation, and, at all the times hereinafter referred to was in charge of its logging camp and its employees.

The plaintiff proceeded upon the theory that the defendant company was engaged in a hazardous occupation, as defined by the Workmen's Compensation Law (Or. L. § 6605 et seq.) but that, having rejected the protection of that act, the company was deprived of certain defenses hereinafter mentioned. Plaintiff avers that the company was negligent in failing to anticipate the storm and to take precautions to protect its employees; that the law imposed upon the company a duty to operate its trains from Dee to the camp on Friday evening, November 18, 1921, in order to transport the men from the camp; that on the following day the company was grossly negligent in failing to operate its train from Dee to the logging camp, and in turning back the train that had started from Dee.

On the trial, a judgment of nonsuit was entered on motion of defendants. Plaintiff, appealing, says the court erred in its ruling upon the admissibility of evidence; "in determining as a matter of law that the logging camp, on Sunday, November 20, 1921, was a safe place for plaintiff to remain"; and in determining that defendants were entitled to judgment of nonsuit.

John W Kaste, of Portland (Kaste & Rand, of Portland, on the brief), for appellant.

John F. Reilly and E. L. McDougal, both of Portland (E. L. McDougal and Wilson & Reilly, all of Portland, on the brief), for respondents.

BROWN, J. (after stating the facts as above).

At the outset we are confronted with the question of the sufficiency of the evidence to submit the cause to the jury.

It is a well-established rule in this jurisdiction that a motion for an involuntary nonsuit should never be granted where there is any competent evidence produced by the plaintiff tending to uphold the material allegations of his complaint. And, in considering such evidence, every reasonable intendment, and every fair and legitimate inference which can arise therefrom, must be made in favor of the plaintiff. Farrin v. State Industrial Accident Commission, 104 Or. 452, 205 P. 984, and the Oregon cases there collected. the plaintiff asserts that the occupation carried on by the defendant company is designated by law as hazardous, and that he suffered an accidental personal injury arising out of and in the course of his employment by the company.

Within the purview of the Workmen's Compensation Law of this state, the Oregon Lumber Company was engaged in a hazardous occupation. Or. L. § 6617. The business of carrying on a sawmill or a logging camp is within the compass of the Employers' Liability Act. Or. L. §§ 6785-6790.

The lumber company having rejected the benefits of the Workmen's Compensation Law, it is relieved from all obligations to contribute thereto, but it is likewise deprived of the defense that the injury sued upon "was caused in whole or in part by the negligence of a fellow servant of the injured workman, that the negligence of the injured workman, other than his willful act, committed for the purpose of sustaining the injury, contributed to the accident, or that the injured workman had knowledge of the danger or assumed the risk which resulted in his injury." Or. L. § 6620. If, as plaintiff contends, he sustained personal injury by accident arising out of and in the course of his employment and resulting in his disability, within the meaning of the Workmen's Compensation Law, he comes within the embrace of that law. To determine whether he was a workman within the meaning of that law, and to ascertain whether he abandoned the camp on account of a perilous situation there, let us look to the evidence:

On Friday, November 18, 1921, snow commenced to fall at the logging camp where plaintiff was employed. However, he continued to work all that day. By evening a foot of snow had fallen. On Saturday morning the snow had reached a depth of 2 feet at the camp, and defendant Blanding, the company's foreman, closed the camp for the season. Advising the men not to become excited, he instructed them to roll up their blankets, and told them that a train would come up and take them out that day. He also notified the men that he had reduced the board from $1.20 to 50 cents per day. The time checks of the company's employees were made out on Saturday. No train reached the logging camp that day. A train had started from Dee early Saturday morning in an attempt to reach the camp, but had turned back before reaching the halfway point. The plaintiff says that Assistant Superintendent West ordered it to turn back because if it came through the men would all leave camp. On Sunday morning the camp was in the midst of a fall of snow 4 feet in depth, and snow was yet falling. Some of the men. including the plaintiff, discussed the advisability of making their way out to the valley through the snow. Blanding said to the men that it would be dangerous for one of them to start out alone, but that, if a "bunch of five or six" would go together, they might make the journey in safety. A leader among those inclined to make the journey was one Emil Anderson, a hardy, strong, and fearless Swede. He declared, in substance, that the only way to get away from the marooned camp was to walk, and that he was going; that he intended to start at 1 or 1:30 that afternoon. The plaintiff, with four others, called for their time checks, shouldered their blankets--one of them taking a suit case in addition--followed their leader, the adventurous Norseman, who went ahead and broke the way through the knee-deep snow along the grade of the logging road. The way was difficult. They had gone not more than a mile when the man carrying the suit case threw it away, and a little later he discarded some of his blankets. Striking deeper and unpacked snow, they sank to their waists as they attempted to push one foot ahead of the other. There was a deep canyon below, and a mountain above. When night began to fall, the toilers through the snow were at least a mile and a half from their first objective, the "old camp." To add to their hardships, the snow gave way, a slide occurred, and four of the men were carried from 50 to 250 feet down the side of the canyon. It was only by the most strenuous efforts that they succeeded in climbing up the side of the canyon to regain the grade. They were about exhausted. Anderson started to push onward, but, observing indications of another slide, he retraced his steps, and all remained for the night, encamped in the snow, with no shelter other than a tree. Two of the men had lost their blankets in the slide. Their remaining blankets they spread upon the snow, and they sat there throughout the night. When they encamped for the night, Anderson said he was tired, warm, and "sweating." Such, no doubt, was the condition of the others. During the night the atmosphere became intensely cold. The men dared not sleep lest they freeze to death. At break of day the journey was resumed, and the "old camp" was reached about 9 a. m. They entered the building and found coffee. They lighted a fire, and made a pot of coffee, which they drank. Then, feeling somewhat refreshed, they pursued their laborious journey towards Dee. About 3:30 p. m. they reached a farmhouse about 2 1/2 miles from Dee, where the plaintiff and some others of the party found shelter. Anderson pushed on to Dee. On reaching the farmhouse, plaintiff discovered that his feet were frozen. While en route to the hospital at Hood river, where he was taken on a sled, his feet were again exposed to the elements. In the course of his treatment at the hospital it was found necessary to amputate the toes of his right foot, and his left leg below the knee. Can the plaintiff be heard to say that he sustained personal injury by accident "arising out of and in the course of his employment" by the Oregon Lumber Company?

The words "arising out of and in the course of his employment," as used in the Workmen's Compensation Law, should be given a broad and liberal construction. This is the holding of many courts, including our own. In a valuable note appearing in Ann. Cas. 1918B, 769, the view of different courts concerning a workman's right to compensation under laws similar to our own is set down. We quote therefrom the following:

"To entitle a workman to an award of compensation under a Workmen's Compensation Act, his injuries must result from an accident both arising out of and in the course of his employment. The two elements must

...