Cross Lake Logging Co. v. Joyce

• Decision Date: 13 December 1897
• Docket Number: 944.
• Parties: CROSS LAKE LOGGING CO. v. JOYCE.
• Court: U.S. Court of Appeals — Eighth Circuit

83 F. 989

CROSS LAKE LOGGING CO. v. JOYCE.

No. 944.

United States Court of Appeals, Eighth Circuit.

December 13, 1897

Emanuel Cohen (Stanley R. Kitchel and Frank W. Shaw, on the brief) for plaintiff in error.

T. F Frawley (F. C. Brooks and F. N. Hendrix, on the brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and RINER, District Judge.

THAYER Circuit Judge.

This is a suit for personal injuries, in which John Joyce, the defendant in error, sued the Cross Lake Logging Company, the plaintiff in error, hereafter termed the 'Logging Company,' in the circuit court of the United States for the district of Minnesota, for injuries sustained while he was in its employ as a common laborer, and was assisting some other employes of the Logging Company in loading saw logs upon cars at a place called Woman's Lake, in the state of Minnesota. On the bank of said lake the Logging Company had constructed certain hoisting works, by means of which logs were first drawn from the lake by an endless chain, to a deck or platform elevated some distance above the lake, and were thence rolled down an incline or steps, onto cars standing at the foot of the incline. The plaintiff was working on this incline, his duty being to direct the movement of logs on one of the steps as they were rolled down the incline from the platform, when, by the carelessness of a fellow workman named Peter Plein, a log was allowed to roll down the incline in such a manner as to break and crush the plaintiff's right leg, and necessitate amputation. As a ground for recovery, the plaintiff alleged in substance, that the work in which he was engaged when he was hurt was dangerous work, requiring skill and activity on the part of those who were engaged in its performance, and that the man named Peter Plein, by whose negligence the injuries complained of were sustained, was a careless and incompetent fellow servant and unfitted for the employment in which he was engaged, and that the Logging Company was well aware of his incompetency, and by reason thereof had promised to substitute some other person in his place a short time before the accident occurred. There was considerable evidence tending to establish all of these allegations, and the jury found in accordance with such testimony. It is assigned for error, however, that the trial court erroneously permitted the plaintiff to give in evidence his own declarations as to the cause of the accident which were made after he was hurt, to one Frank C. Bolin, who was the superintendent of the Logging Company, and who was present at the time of the accident. In the course of the trial there was testimony offered to the effect that on the day of the accident, and prior thereto, the plaintiff informed Frank C. Bolin, the defendant's superintendent in charge of the hoisting works, that Plein was careless and reckless, and did not know anything about the work in which he was engaged, and that he, the plaintiff, would quit work if Plein was further employed in the position where he was then assigned. There was further testimony to the effect that Bolin, in response to this complaint, told the plaintiff to go back to work; that he would put a good man in Plein's place; and that until he did so he would 'see to him' himself, and see that he did not hurt anybody. Shortly thereafter the accident occurred, and Bolin was the first man to come to the plaintiff's assistance when his leg was crushed by the log. The plaintiff was allowed to testify, notwithstanding an objection on the part of the defendant company, that when Bolin came to his assistance, as aforesaid, and within a moment after the accident occurred, he exclaimed: 'Frank, I wouldn't have lost my leg if you had done as you agreed to and put another man in his place;' and that Bolin said nothing in reply to this remark.

It is manifest, we think, that the statement made by the plaintiff to Bolin, to which the objection related, was properly admitted in evidence as part of the res gestae,...