Crawford v. The Bonners Ferry Lumber Co.

• Decision Date: 27 November 1906
• Parties: JOHN IRA CRAWFORD, Appellant, v. THE BONNERS FERRY LUMBER COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

87 P. 998

12 Idaho 678

JOHN IRA CRAWFORD, Appellant, v. THE BONNERS FERRY LUMBER COMPANY, a Corporation, Respondent

Supreme Court of Idaho

November 27, 1906

PERSONAL DAMAGES-DEMURRER TO COMPLAINT-SHOULD BE ORDERED WHEN-BURDEN OF PROOF.

1. Where a complaint alleges the injury to plaintiff in plain and concise language, and that such injury resulted from the carelessness and negligence of defendant in the construction and operation of its sawmill and appliances thereto, and that plaintiff was in no way guilty of contributory negligence and used ordinary prudence and care in the performance of the labor assigned to him, and in the performance of which he was injured, it is not subject to demurrer.

2. When the plaintiff has sufficiently plead the carelessness and negligence in the construction and operation of defendant's saw-mill and other machinery connected therewith, and that through no fault of his he was injured and damaged by defendant whilst in its employ and performing the work prescribed for him by his employer, a demurrer to such complaint should be overruled, and de- fendant permitted to answer setting up its defense; the burden of proof is upon defendant to show that plaintiff was guilty of contributory negligence.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District for Kootenai County. Hon. Ralph T. Morgan, Judge.

Plaintiff commenced this action for $ 2,000 personal damages. A demurrer to the complaint was sustained and judgement entered for costs. The appeal is from the judgment. Reversed.

Reversed and remanded, with instructions. Costs to appellant.

R. E McFarland, for Appellant.

The court erred in sustaining respondent's demurrer to the amended complaint.

The amended complaint clearly shows that Crawford was engaged to work in a different capacity from that in which he was injured; that on the day of the accident, over his objection, respondent required him to suspend the labor he was engaged to perform, and perform services which were new to him, and which he did not understand, and provided him with a cart and appliances with which he had had no experience; that the cart he used was too high and the driveway which he was compelled to use was too low; all of which was well known to the respondent and unknown to appellant, and could not have been discovered by him; that said conditions were latent and not an obvious danger, and that after appellant had carefully inspected the surroundings, vehicle and appliances, they appeared to him to be safe and suitable for said work. Williams v. Ballard Lumber Co., 41 Wash. 338, 83 P. 323; Weist v. Coal Creek Ry. Co., 42 Wash. 176, 84 P. 725; Choctaw, O. & G. R. Co. v. Jones, 77 Ark. 367, 92 S.W. 244; Crist v. Wichita Gas & Coal Co., 72 Kan. 135, 83 P. 199; Bird v. Utica Min. Co., 2 Cal.App. 674, 84 P. 256; Clark v. Wolverine Portland Cement Co., 138 Mich. 673, 101 N.W. 845; Munford v. Chicago R. I. & P. Ry. Co., 128 Iowa 685, 104 N.W. 1135; Colloway v. Agar Packing Co., 129 Iowa 1, 104 N.W. 721; 4 Thompson on Negligence, 4017; Lemser v. St. Joe R. Co., 70 Mo.App. 209; Galveston Ry. Co. v. Hughs, 22 Tex. Civ. App. 134, 54 S.W. 264; James v. Rapid Lumber Co., 50 La. Ann. 717, 23 So. 469, 44 L. R. A. 33; 4 Thompson on Negligence, sec. 4021; Galveston etc. v. Manns (Tex. Civ. App.), 84 S.W. 254; Drake v. San Antonio etc. Co. (Tex.), 89 S.W. 407; Western Union v. McMullen, 58 N.J.L. 155, 33 A. 384, 32 L. R. A. 351; De Cost v. Hargraves, 170 Mass. 375, 49 N.E. 735; Wood on Master and Servant, sec. 349; Hill v. Gust, 55 Ind. 45; Hauff v. Railway Co., 100 U.S. 213, 25 L.Ed. 612; Wheeling v. Wason Mfg. Co., 135 Mass. 294; Condon v. Missouri etc. R. R. Co., 78 Mo. 567; Beach on Negligence, 361; Merrill v. Pyke, 94 Minn. 186, 102 N.W. 393; Texas S. L. Ry. Co. v. Waymire (Tex. Civ. App.). 89 S.W. 452; De Mase v. Oregon Ry. & Nav. Co., 40 Wash. 108, 82 P. 170; Hocking v. Windsor Spring Co., 125 Wis. 575, 104 N.W. 705; Anderson v. Northern P. Lumber Co., 21 Or. 281, 28 P. 5; Ford v. Fitchburg R. Co., 110 Mass. 240. 14 Am. Rep. 598.)

John P. Gray and E. C. Macdonald, for Respondent.

The complaint herein discloses that appellant was guilty of gross negligence, although it seeks to conceal that fact by a liberal use of the allegation that plaintiff had no knowledge of the dangers incident to his occupation. It sets up no defect in the place wherein appellant had to work, or the implements given him to work with, that was not open and apparent to him as well as to the respondent.

The law requires a servant to go about with his eyes open. He has no right to rush blindly into danger and then set up that he did not see the danger. (Wormell v. Maine Cent. R. Co., 76 Me. 397, 1 Am. St. Rep. 321, 10 A. 49; Choctaw O. & G. R. Co. v. Holloway, 114 F. 458-460, 52 C. C. A. 260; Regan v. Palo, 62 N.J.L. 30, 41 A. 364, 365; Whelton v. West End St. Ry. Co., 172 Mass. 555, 52 N.E. 1072. 1073; Miller v. Grieme, 53 A.D. 276, 65 N.Y.S. 813; Jennings v. Tacoma Ry. & Motor Co., 7 Wash. 275-278, 34 P. 937, 938; Goldthwait v. Haverhill & G. St. Ry. Co., 160 Mass. 554, 36 N.E. 486; Mellot v. Louisville & N. R. Co., 101 Ky. 212, 40 S.W. 696; Bullivant v. Spokane, 14 Wash. 577, 45 P. 42; Minty v. Union P. Ry. Co., 2 Idaho 471, 21 P. 660.)

Plaintiff, in his complaint, attempts to make much of the fact that he was directed to assume new duties against his protest that he was unfamiliar with that kind of work. Plaintiff could have accepted or refused his new occupation at his option. But upon accepting it, he assumed all the risks incident thereto. (Leary v. Boston & A. R. Co., 139 Mass. 580, 52 Am. St. Rep. 733, 2 N.E. 115.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, C. J.

This appeal is from Kootenai county. Plaintiff field his amended complaint, to which defendant interposed a demurrer, which was sustained, and judgment entered for costs. The appeal is from the judgment.

The complaint alleges that defendant is a corporation organized and existing under the laws of the state of Wisconsin, and doing a sawmill business in Kootenai county, this state. That about one year prior to August 24, 1904, plaintiff entered the employ of defendant as teamster to haul and skid logs and timbers in the forests owned and used by defendant in connection with its sawmill. It is then alleged that defendant, in connection with its said sawmill, used a certain carrier operated for the purpose of conveying refuse created in said sawmill to a certain box midway of said carrier, when said refuse was by said carrier dumped into dumpcarts driven under said box, and hauled away by other employees of defendant; that said carrier consisted of a loop chain and stationary woodwork, constructed so as to convey said refuse from said sawmill to said box, and was about two hundred feet long; that said box had a driveway thereunder and there through, with heavy ceiling and timbers over said driveway, and a trap door in said ceiling and timbers through which said refuse was dumped into dump-carts below. The dump-carts used by defendant for hauling said refuse are described as large, heavy, two-horse, four-wheeled carts, with a heavy bed or box arranged to balance on an axle to which it was held by an iron bolt; that said bed or box was held in place by means of a hook thereto, which fastened into the tongue or forepart of the running gear of the said dump-cart; that at the rear end of said bed or box there was a heavy tail-board or end-gate fastened by means of hinges, bolts or swivels in such manner that said tail-board or end-gate could be swung or turned over upon and across said bed or box when said carts were being loaded; that the said bolts, hinges or swivels extended higher than the surface of said bed or box, and that when said tail-board was swung over and across said bed or box it was about on a line with the top parts of said bolts, hinges or swivels.

The fifth allegation of the complaint is "that on the day last aforesaid, and while plaintiff was in the performance of his said duties in hauling and skidding logs and timbers in the forests of defendant pursuant to said employment, the said defendant directed and required plaintiff to suspend said work and to haul certain laths from the south end of said sawmill to a dry yard northeast of said sawmill, a distance of about five hundred feet, with one of said dump-carts; that thereupon plaintiff objected to performing said last-mentioned services and informed defendant that he was ignorant of, and did not understand said work, or dump-carts, or the use thereof; whereupon defendant further directed and required plaintiff to perform said last-mentioned labor, and insisted that he do so, and plaintiff proceeded to haul said laths as directed by defendant as aforesaid.

"VI. That it was, then and there, and at all times, the duty of the defendant to furnish, keep and maintain a safe sufficient and suitable place for plaintiff to work in and at, and to provide, keep and maintain sufficient, suitable and safe appliances, means, implements and vehicles with which to perform said labor, and to provide, keep and maintain sufficient, suitable and safe roads over which to haul said laths, but that, disregarding its duty in the premises, and in this respect, it knowingly carelessly and negligently caused said carrier and box to be so constructed that they were too low to safely drive under with said dump-cart loaded with laths, and said dump-cart was too high to safely drive under said carrier and box and the only road from said south end of said sawmill to said dry yard, over, along and upon which plaintiff had to, or could, haul said laths, led and ran under said carrier and box and was rendered...