Crookston Lumber Co. v. Boutin

• Decision Date: 30 November 1906
• Docket Number: 2,418.
• Citation: 149 F. 680
• Parties: CROOKSTON LUMBER CO. v. BOUTIN [1]
• Court: U.S. Court of Appeals — Eighth Circuit

149 F. 680

CROOKSTON LUMBER CO. v. BOUTIN ^[1]

No. 2,418.

United States Court of Appeals, Eighth Circuit.

November 30, 1906

Marie F. Boutin, as administratrix of the estate of Frank Boutin deceased, brought this action against the lumber company to recover damages for the death of the decedent who was her husband. The lumber company was operating a steam sawmill at Crookston, Minn. Logs were hauled from the river and rolled upon a deck at the north end of the mill from which, as needed, they were separately rolled upon a carriage which carried them up against a vertically running band saw to be worked into lumber. This carriage was about 60 feet long constructed of wood and iron, and sufficiently heavy, bulky and strong to steadily support and carry a large log. It was connected with a piston rod driven by steam conducted from the boiler to the cylinder through adjustable valves connected by rods and cranks with the operating lever located on the west side of the track on which the carriage ran. The head sawyer, by operating the lever, could so open and close the valves as to run the carriage back and forth past the saw as business required. When the carriage was not in operation the lever stood upright or perpendicular. A forward push of the lever started the carriage forward from the log deck, and a backward pull stopped the progress of the carriage and returned it to the starting point for another similar movement. The day crew began work at 7 o'clock in the morning, but at 5 minutes before 7, the mill was started up to secure the proper speed of the saw before work began. The saw was a continuous band of steel with teeth on one edge only, so operating around two large pulleys revolved by steam power, and so located at the west side of the track as to present its toothed edge to the end of the carriage as it brought a log up against it for sawing. This preliminary start put the pulleys and saw only into motion. It was not intended to, and did not, cause the forward and backward movement of the carriage. The crew consisted among others of the head sawyer, who, among other duties handled the lever for operating the carriage, and whose place was in front of the pulleys about three feet west of the carriage track, and a tail sawyer, who, among other duties, took off the sawed product from the carriage after the log had passed the saw, and whose place was behind the pulleys, a safe distance west of the track. The flying sawdust produced by the operation of the mill collected on the inside of the rim of the upper pulley, and, in order to keep the machinery in proper adjustment, required frequent removal. The rim was about 12 inches wide, and was supported by spokes leading from the hub to it, leaving a few inches on either side of the spokes so exposed as to be readily cleaned by holding a stick fast against it and permitting the revolving wheel to pass it. This operation of cleaning off the sawdust was generally performed while the mill was speeding up preparatory for beginning work. The head sawyer's business was to clean the side of the rim next to him, and the tail sawyer's business the side next to him. The place where the head sawyer stood to operate his lever was so near to the rim of the pulley that he could reach it with the usual stick employed for the purpose of cleaning it. There was a guard consisting of an upright plank between his standing place, and the revolving pulley over which he could safely perform the cleaning process. There were other places on either side, and close to the upright plank, where one might stand with comparative safety and perform the operation.

There is evidence tending to show that, by reason of improper adjustment of valves intended for admitting steam into the cylinder, it had for some time before October 8, 1904, forced its way slightly into the cylinder and against the piston so as to move it and the rod connecting with the carriage, thereby giving the carriage what is called a 'creeping, advancing motion,' even when not desired or expected, and when the lever was locked in an upright position. Although denied by defendant's witnesses, there is evidence tending to show that such creeping motion had frequently occurred just before October 8th, during the time the mill was being speeded up before the hour of starting came. The decedent had been working for the lumber company for several months in the capacity of tail sawyer. He had frequently noticed this apparently automatic creeping motion of the carriage, had warned other workmen of it and had cautioned them to exercise care. A short time before October 8th he told witness Munn to watch the carriage, that he could not tell when it might start. Two or three days before that day he complained to defendant's superintendent about it and secured a promise that it should be repaired and put in order. On that day decedent went to his work as usual. After the speeding of the mill had begun and about 2 or 3 minutes before 7 o'clock he went to his place, back or south of the pulleys, took the stick, and cleaned the inside rim next to him. The evidence shows that the duties of his employment usually kept him on the south side of the pulleys, and did not require him to go to the north side except when a newly filed saw was to be substituted for a dull one, on which occasion only he was required by the terms of his employment to be on the north side to help the head sawyer make the change. But there is evidence tending to show that decedent frequently went over to the head sawyer's side and performed for him the service of cleaning the rim on that side.

On the morning in question, October 8, 1904, after cleaning the rim on his side, the head sawyer, not having gone to his lever, but standing some distance across the carriage track eastwardly thereof examining directions for the work of the day there posted, the decedent went over to the north side apparently to help the head sawyer. Instead of taking the position of absolute safety behind the upright guard plank, or either of the other positions of comparative safety a sufficient distance away from the carriage track, he took a position practically in front of the saw, within two feet of it, while it was running at the rate of 5,000 feet per minute, with his left foot on the west rail of the carriage track, and his right foot raised and resting upon a lower extension of the guard plank; and there with his back to the carriage that might at any time, as he knew, noiselessly start and bear down upon him, he stood holding the stick against the rim of the pulley in the process of cleaning it. While so doing, and without any backward look by him, the carriage did start, and, without observation by him, moved down upon him, forced his body against the teeth of the saw, and he was instantly killed.

At the close of all the evidence defendant's counsel moved for an instructed verdict in its favor. The motion was denied and exception duly allowed. A verdict and judgment followed in favor of the plaintiff, and this writ of error was prosecuted to secure a reversal of that judgment.

Thomas J. Davis (Theodore Hollister, on the brief), for plaintiff in error.

Charles Loring (Halvor Steenerson, on the brief), for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

ADAMS Circuit Judge, after stating the case as above, .

The defendant was engaged in a hazardous business. It owed a duty to its employes to exercise all reasonable care to provide them with suitable and reasonably safe machinery and instrumentalities with which to do their work.

The evidence, we think, was sufficient to go to the jury on the issue of negligence as charged. It tended to show that defendant did not exercise reasonable care in keeping the log carriage well in hand or sufficiently under control during the preliminary period of speeding up its mill, to prevent its insidious and dangerous movement along the track where employes were likely to be. There was also substantial evidence tending to show that the decedent complained to the superintendent of defendant company about the dangerous condition of the machinery, and particularly about the sudden and uncontrolled movement of the log carriage, and secured a promise from him to repair the same. The last mentioned facts, unless the risk of remaining was so obviously and imminently dangerous that a person of ordinary prudence would not have taken it while the promised repairs were being made warranted the decedent in continuing to work for the defendant for a time thereafter reasonably sufficient to enable it to make good the promise, without assuming the risks ordinarily incident to the use of known defective machinery (Hough v. Texas Pacific R. Co., 100 U.S. 213, 225, 25 L.Ed. 612; District of Columbia v. McElligott, 117 U.S. 621, 6 Sup.Ct. 884, 29 L.Ed. 946;Northern Pacific Railroad Co v. Babcock, 154 U.S. 190, 200, 14 Sup.Ct. 978, 38 L.Ed. 958; Cudahy Packing Co. v. Skoumal, 60 C.C.A. 306, 125 F. 470, 473; Homestake Min. Co. v. Fullerton, 16 C.C.A. 545, 69 F. 923; Roccia v. Black Diamond Coal Min. Co., 57 C.C.A. 567, 121 F. 451); but they did not relieve him from the obligation to exercise reasonable care and precaution for his...