Hicks v. Peninsula Lumber Co.

• Decision Date: 13 November 1923
• Citation: 220 P. 133,109 Or. 305
• Parties: HICKS v. PENINSULA LUMBER CO.
• Court: Oregon Supreme Court

220 P. 133

109 Or. 305

HICKS v. PENINSULA LUMBER CO.

Supreme Court of Oregon

November 13, 1923

Department 2.

Appeal from Circuit Court, Multnomah County; G. W. Stapleton, Judge.

Action by P. E. Hicks against the Peninsula Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. A. Hart, of Portland (Carey & Kerr, of Portland on the brief), for appellant.

John W. Kaste, of Portland (Jay Bowerman, of Portland, on the brief), for respondent.

McCOURT J.

This is an action brought to recover damages for personal injuries received by plaintiff, which he alleges were caused by the negligence of the defendant. From a verdict and judgment in favor of plaintiff, defendant appeals.

The injury for which plaintiff seeks damages occurred on May 3 1921, at the lumber manufacturing plant of the defendant while plaintiff, an employee of the Willamette Iron & Steel Works, was engaged, with other workmen, in the installation of a mud drum under certain of the boilers in defendant's plant. Plaintiff was working in the mud drum, when defendant's foreman ejected steam from a live boiler into a blow-off pipe line that had been connected with the mud drum by defendant's employees a few hours previously thereby scalding plaintiff.

Plaintiff's employer, the Willamette Iron & Steel Works, was operating under the Workmen's Compensation Law; but as the injury happened away from the employer's plant, plaintiff had a right to take compensation, or, at his election, seek his remedy against the defendant if the injury to plaintiff was due to the negligence or wrong of defendant.

Immediately after he was injured, plaintiff applied to the Industrial Accident Commission for compensation, and received a first payment for temporary disability. Shortly thereafter, and while plaintiff was in the hospital, he returned to the Industrial Accident Commission the amount of such first payment, and notified the Commission that he elected to seek his remedy against the defendant, and at the request of the Commission, plaintiff executed a formal writing declaring that election.

Two questions are presented by this appeal, both raised on the trial by a motion for nonsuit and a motion for a directed verdict: (1) Whether there was any evidence produced at the trial in support of any of the charges of negligence contained in the complaint; and (2) whether after the accident there was an election to take compensation under the Workmen's Compensation Law and a resulting assignment of the cause of action against the defendant, if any existed, to the state.

The determination of these questions requires an examination of the evidence.

Defendant is engaged in the manufacture of lumber. Its plant, which is located on the Willamette river at St. Johns in Portland, is furnished with steam by a battery of nine boilers, the easterly three of which were out of commission at the time of the accident. Underneath these three boilers there is located a cylindrical drum, 30 feet long and 30 inches in diameter, known as a "mud drum," running crossways of the boilers, the east end of which is flush with the brick wall inclosing all the boilers above mentioned. At the end of the mud drum and in this brick wall, there is a manhole, and below the manhole is a pipe leading along the floor and out through the wall of the building to what is known as the "blow-off" tank or "sump" tank located under the floor of the dock just outside the boiler room building. In this pipe which leads from the mud drum to the blow-off tank outside the building, there are two valves; one ordinarily used and the other an emergency valve. These valves are located just inside the wall of the boiler room building. The mud drum is designed to drain the boilers and to carry off sediment from the water in the boilers. When the boilers are drained or "blown-off," the water or steam passes into the mud drum, thence through the drainpipe (the valves being first opened), to the blow-off tank outside the building. The blow-off tank is similarly connected with all of the boilers. Its use is necessary in order that steam and hot water from the boilers (or their mud drums) shall not be discharged directly from the boilers. The blow-off tank has a vent for the escape of steam and a drain emptying into the river. When conditions require the blowing off of a boiler, the fireman in charge opens the valve in the pipe leading from the boiler (or its mud drum) to the blow-off tank, so that when the steam is released from the boiler, it is discharged through the blow-off tank. If the valves in any of the pipes connecting the blow-off tank with other boilers (or their mud drums) are left open at such a time, some of the steam coming into the blow-off tank may "kickback" up those pipes to the mud drum under the other boilers.

This is what happened when plaintiff was hurt: He and another workman were in the mud drum under the easterly three boilers when a boiler at the far end of the boiler room was blown off. The steam was discharged in the usual way into the blow-off or sump tank, but because the valves in the pipe which connected the blow-off tank with the mud drum under the three easterly boilers were open, some of the steam traveled from the blow-off tank up this pipe and into the mud drum and caused plaintiff's injury.

As above stated, plaintiff was an employee of the Willamette Iron & Steel Works. That company had contracted with defendant for the construction and installation of a new mud drum under the three easterly boilers, the installation to include the placing of the mud drum under the boilers, but not to include the pipe work necessary to connect the boilers with the water supply to them or the mud drum with the blow-off tank. Under the contract between defendant and the Willamette Iron & Steel Works, before the latter entered upon the work, defendant was required to, and did, disconnect the boilers, under which the mud drum was to be placed, from the blow-off tank, and in so doing, removed all the steam pipes connecting the mud drum with the blow-off tank. Defendant was also required to, and did, disconnect the pipes which supplied water to the boilers. On Saturday, April 30, 1921, the foreman in charge of the installation work reported to the chief engineer of defendant that the mud drum was in, and ready to be tested. The chief engineer of defendant thereupon directed his pipe fitters to make connection for the water supply necessary to make the tests. Defendant's pipe fitters immediately made the connections, as directed, and also attached to the mud drum that portion of the drain pipe which was equipped with valves, as aforesaid, and which extends from the manhole in the mud drum to a point just outside the wall of the boiler room, so that water could be retained in the mud drum while the tests were being made and could be drained from the boilers and the mud drum upon the floor of the dock outside the building when the tests were completed.

Tests were made of the mud drum on Saturday evening and Sunday, by filling the boilers with cold water, and after the tests the water was drained out through the pipe referred to, on the floor of the dock outside the building. The tests developed defects, which were attempted to be cured by calking. This proved unsuccessful, and the foreman of the Willamette Iron & Steel Works finally determined to cut out the leaky rivets and put in new ones. On Monday, May 2d, the faulty rivets were removed, and in the evening at 5 o'clock a new crew of the Willamette Iron & Steel Works, including the foreman above mentioned and plaintiff, began the work of putting in new rivets. In the meantime the pipe fitters of defendant connected the mud drum with the blow-off tank, so that the mud drum no longer drained on the floor of the dock outside the building, but was connected up with the blow-off tank and the exhaust steam line connecting with all of defendant's boilers. No notice that this connection had been made was given to plaintiff, his foreman, or any of the men working with him. The employees of defendant in charge of the work, who connected the mud drum with the blow-off tank, testified that when the pipe fitters completed their work of installing this pipe and connecting it with the blow-off tank, one of them at once notified defendant's day fireman then in charge, and in the presence of the day fireman closed the valve nearest the mud drum. Later in the day the second-shift fireman, who took charge at 2 o'clock p. m., testified that he had occasion to observe these valves, and noticed that the valve nearest the mud drum was properly closed. The reriveting work which began Monday evening required one of the men to get inside of the mud drum, going in through the manhole at the end. Later a second man was sent in by the foreman of the Willamette Iron & Steel Works, so that there were two, plaintiff and another, in the mud drum when steam was turned into the same, as hereinafter stated.

At about 2 o'clock in the morning of Tuesday, May 3d defendant's night fireman blew off one of the boilers then in use; it being customary to do this once or twice during the night. The valves in the pipe leading from the blow-off tank to the mud drum, in which plaintiff and his fellow workman were at work, were then open, and the steam which came into the blow-off tank from the boiler then blown off by the fireman traveled up through this connecting pipe, passed the open valves and into the mud drum where the men were working, and severely burned and scalded them. The plaintiff and his fellow workmen, including his foreman, all testified that they did not know that the mud drum had been connected with the blow-off tank, and that they had not opened the valves...