Finn v. Oregon Water Power & Ry. Co.

• Decision Date: 11 February 1908
• Parties: FINN v. OREGON WATER POWER & RY. CO.
• Court: Oregon Supreme Court

93 P. 690

51 Or. 66

FINN v. OREGON WATER POWER & RY. CO.

Supreme Court of Oregon

February 11, 1908

Appeal from Circuit Court, Multnomah County; Calvin U. Gantenbein Judge.

Action by William A. Finn against the Oregon Water Power & Railway Company. From a judgment for defendant, entered on a motion for a nonsuit, plaintiff appeals. Affirmed.

Henry E. McGinn, for appellant.

R.W Wilbur, for respondent.

BEAN, C.J.

This is an action to recover damages for a personal injury, and is brought here on an appeal from a judgment in favor of defendant entered on a motion for a nonsuit at the close of plaintiff's testimony. Plaintiff was employed about a donkey engine which was used by defendant in operating a scraper in connection with the construction of a dam across the Clackamus river at Cazadero. His principal duty was to assist in getting fuel for the engine. To obtain fuel the employés hauled or pulled in logs to the engine by its own power by means of a cable one end of which was fastened to the log and the other to a drum on the engine. The cable passed through a block or pulley, which was fastened by a chain to a skid upon which the engine rested. On September 18, 1905, while a log was being thus pulled in, the chain which held the block parted, and plaintiff was struck by the cable, and injured. He charges that his injury was due to the negligence of defendant in not furnishing a chain of sufficient strength to stand the strain. But there is no evidence in the record, independent of the accident itself to support this averment. Plaintiff is the only witness who testified on the trial in reference to the accident or its cause. He says he was put to work at the engine by the day foreman to cut wood and assist in pulling in logs from which to obtain bark to keep up steam; that on the night of the accident, while a log was being pulled in, the chain broke and he was struck with the cable and injured, and that he does not know what caused the chain to break. This is all the testimony as to the cause of the accident.

It is a settled law in this state that in an action by a servant against a master to recover for personal injuries sustained by the former while in the employ of the latter, due to alleged failure of the master to provide reasonably safe tools and appliances, the burden of proof is on the plaintiff to show the negligence charged; and, if the ground of recovery is a defect in machinery or...