Dryden v. Pelton-Armstrong Co.

• Decision Date: 13 April 1909
• Citation: 53 Or. 418,101 P. 190
• Parties: DRYDEN v. PELTON-ARMSTRONG CO.
• Court: Oregon Supreme Court

101 P. 190

53 Or. 418

DRYDEN v. PELTON-ARMSTRONG CO.

Supreme Court of Oregon

April 13, 1909

Appeal from Circuit Court, Multnomah County; J.B. Cleland, Judge.

Action for personal injuries by J.W. Dryden against the Pelton-Armstrong Company. From a judgment for plaintiff defendant appeals. Reversed.

This is an action by plaintiff to recover damages for a personal injury. Defendant is a corporation organized under the laws of Oregon, and engaged in a general logging business in Oregon and Washington. At the time of the injury complained of defendant was engaged in logging in the state of Washington by means of a chute made of logs embedded in the ground. For a short distance at the upper end of the chute the logs descend by gravity, and below this point they are propelled by a cable, operated by an engine situated at the lower end of the chute. A signal wire, attached to the engine whistle, extended up the chute, suspended overhead, and fastened to a tree some distance above a point referred to as the "hump" (the commencement of a steeper incline and of a curve in the chute). There were two places where the chasers could reach it--at the hump and at the upper end of the wire. Plaintiff was employed as a chaser, as to whose duty the evidence is not very full. On this chute there were two chasers; plaintiff working a distance of about 240 feet on the upper part, and Paris on the lower part, from the hump down. Plaintiff's duty was to fasten the grabs to the log, which were two large hooks attached to the cable, and to follow the log down the chute, while Paris remained at the signal station at the hump, so that, in case plaintiff desired to start or stop the cable, he might notify Paris and he notify the engineer by means of the signal wire. After the log passed the hump, Paris would follow it, and plaintiff would take his place, and, if anything happened while Paris was going down, plaintiff would stop the line. Near the hump a log--known at the trial as No. 5--lay close to the chute on the left side, which, defendant's witnesses testify, had been placed there to prevent the log from leaving the chute at that point. Plaintiff had worked for defendant in the forest two or three months, cutting log roads, setting grabs and at this particular work about five days. Defendant denies any negligence on its part, and alleges that any danger then existing was open, visible, and known to plaintiff, and that he assumed the risk thereof, and that his injury was the result of his own negligence. The cause was tried by a jury and a verdict rendered for plaintiff. At the close of plaintiff's testimony defendant moved for a judgment of nonsuit, for the reason that the evidence shows that plaintiff assumed the risk; that he was guilty of contributory negligence; that he had equal knowledge with defendant of the conditions existing; and that no negligence on defendant's part was shown. The motion was denied by the court, and defendant also excepted to the refusal of the court to give certain instructions requested, and, after the verdict, moved the court for a new trial, which was denied. Defendant appeals.

R.W Wilbur, for appellant.

M.O. Wilkins and A.E. Gebhardt, for respondent.

EAKIN J. (after stating the facts as above).

The instructions given by the court practically include those requested by defendant, and it is not necessary to mention them at length. There is no question involved here in the motion for a new trial not covered by the motion for judgment of nonsuit. It is first urged by plaintiff that defendant waived the motion for nonsuit by offering evidence in its own behalf after the motion was denied. Under the practice in this state a motion for a nonsuit is not so waived, but plaintiff urges that, the cause of action having arisen in the state of Washington, the law of the place where the injury occurred should control here, and that in Washington a defendant waives a motion for nonsuit by introducing evidence on its own behalf after the motion has been denied. But we find no difference between the rule in Washington and in Oregon upon that question. In Matson v. Port Townsend etc., R.R. Co., 9 Wash. 449, 37 P. 705, it is held: "The fact that a defendant goes into his defense of an action after the denial of his motion for a nonsuit to which he was entitled at the time the motion was interposed operates as a waiver thereof merely to the extent of allowing the plaintiff to benefit by any evidence introduced by defendant or by himself in rebuttal." In Dimuria v. Seattle Transfer Co., 50 Wash. 633, 97 P. 657, it is held that the motion is waived by defendant proceeding with its evidence, but such waiver extends only to allowing plaintiff the benefit of any evidence thereafter introduced. This is the practice in Oregon, beginning with Bennett v. Northern Pacific Express Co., 12 Or. 49, 6 P. 160, and recognized in Carney v. Duniway, 35 Or. 131, 57 P. 192, 58 P. 105, and Trickey v. Clark, 50 Or. 516, 93 P. 457, where it is held that, if plaintiff did not prove a cause...