Cybur Lumber Co. v. Erkhart

• Decision Date: 19 January 1917
• Docket Number: 3010.
• Citation: 238 F. 751
• Parties: CYBUR LUMBER CO. v. ERKHART.
• Court: U.S. Court of Appeals — Fifth Circuit

238 F. 751

CYBUR LUMBER CO. v. ERKHART.

No. 3010.

United States Court of Appeals, Fifth Circuit.

January 19, 1917

Rehearing Denied February 27, 1917.

Gex &amp Waller, of Bay St. Louis, Miss., and J. C. Henriques, of New Orleans, La., for plaintiff in error.

O. F Moss, of Lucedale, Miss., and Mize & Mize, of Gulfport Miss., for defendant in error.

This is a writ of error to a judgment of the District Court for the Southern District of Mississippi in a case in which the defendant in error was plaintiff in an action to recover damages for a personal injury sustained by him, while in the employment of the plaintiff in error, which was a lumbering company. The District Judge refused to direct a verdict for the defendant, upon its request, and his refusal is the only error relied upon by the plaintiff in error to reverse the judgment against it.

The facts, which are not in serious controversy, are substantially as follows: Corbet Erkhart, defendant in error, was employed by the plaintiff in error as a 'tonger,' to assist in the operation of its skidder in pulling logs from the woods adjacent to its skidder. The skidder in question was a 'ground skidder,' which could be moved from place to place on slides resting on the ground. It was operated by a drum, around which was wound a steel cable, on the end of which cable were tongs, which tongs were taken out in the woods and fastened to the logs to be drawn in to the skidder by the revolutions of the drum. It was the duty of the plaintiff to take the tongs, attached to the end of the cable, from the skidder out into the woods and fasten same to the end of the logs that were to be drawn in. The skidder drew logs in on all sides from a radius of 900 feet by means of this cable attached to the drum on the skidder, which cable ran through a pulley or sheave attached about 15 or 20 feet in height to a tree. Since the tree was forced to bear the great strain of pulling in the logs through the pulley attached thereto, it was necessary to brace the tree to which the pulley was attached, so that the tree would not be uprooted by the strain. This was done by means of a guy line running from the point on the tree to which the pulley was attached to another tree some 30 or 40 feet away, to which tree the guy line was fastened near the ground. Whenever it became necessary, in the course of the operations, to move the skidder to another scene, it was also necessary to remove the guy line from the tree or object to which it had been attached.

On the date of the accident complained of, a log was being pulled in from the woods by means of the cable and skidder. The log lay to the side, or not directly in front of, the skidder. The plaintiff attached the cable to the log, and it was taken on the 'off side' (from the skidder) of a small bay tree, so that, when the cable was pulled by the drum, the little tree, being out of a straight line between the skidder and the log, was broken off about 10 feet high by the cable, the top of the little tree falling on the ground near to and parallel with the guy line of the skidder, but the butt of the little broken tree remained upon the stump, about 10 feet high, where it so remained until the crew prepared to move the skidder a short while afterward.

The testimony of the defendant in error, which is not disputed, was that he was sitting down near the skidder, while witness Batley and witness Gibson were endeavoring to unfasten the guy line of the skidder, which ran along beside, or in the direction of, the little broken tree; that witness Batley had unfastened the guy line at the stump of one tree; and that witness Gibson, up the other tree at the pulley, loosened the guy line there, called out, 'Give me some slack,' meaning for some one to slacken the guy line so as to facilitate his work up the tree. Plaintiff thereupon got up and walked over to pull on the guy line to give Gibson slack, when the little bay tree, which neither rested on the guy line nor was touched by any one, jumped off the stump, falling on plaintiff's leg, breaking same, and causing the injury complained of.

Before PARDEE and WALKER, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge (after stating the facts as above).

The plaintiff in the court below relied upon one ground of negligence only, namely, that the defendant was guilty of negligence in that it did not exercise reasonable care to furnish the plaintiff with a safe place in which to work. It was not contended that any part of the plant or appliances used by the defendant were defective. It was not contended that the place where the work was being performed by ...