Hubbard v. Lamford Lumber Co.
| Decision Date | 12 December 1956 |
| Citation | 304 P.2d 943,209 Or. 145 |
| Parties | Leonard HUBBARD, Appellant, v. LAMFORD LUMBER CO., Inc., a corporation, Respondent. |
| Court | Oregon Supreme Court |
Nels Peterson, Portland, for appellant. On the briefs were Peterson & Pozzi, Berkeley Lent, and Gerald H. Robinson, Portland.
Harold A. Fabre, Pendleton, for respondent. On the brief were Mautz, Souther, Spaulding, Denecke & Kinsey and James B. O'Hanlon, Portland.
Before WARNER, C. J., and ROSSMAN, LUSK, PERRY and McALLISTER, JJ.
This is an action to recover damages for personal injuries based upon negligence. The jury returned a verdict in favor of the defendant, and the plaintiff has appealed from the consequent judgment.
On August 18, 1953, the plaintiff, Leonard Hubbard, was employed as an edgerman in the sawmill of the defendant, Lamford Lumber Co., Inc., a corporation, in Grant County, Oregon. On that day Hubbard was instructed to assist in the repair of a conveyor chute, which ran from the sawmill to a large burner 175 feet distant. The conveyor chute was used to carry waste such as slabs and sawdust from the mill to the burner where it was burned. The repairs were to be made to the end of the conveyor chute which entered the burner. This was a considerable distance above the ground, and it therefore became necessary to erect a scaffolding inside the burner to afford a place of work for the men engaged in the repair job. The platform of the scaffolding was 22 feet above the ground. The supporting legs were made of 4 X 4 timbers with 3 sets of crosspieces between the ground and the platform to brace the legs. Herman Smith, a carpenter who was in charge of the construction of the scaffolding, testified as a witness for the defendant. He was asked, 'What, if anything, did you do about testing it?' and answered, He testified further that in selecting lumber for the scaffolding they picked out the best boards and looked them over for knots, but did not find anything 'that was dangerous. Hubbard and five other employees of the defendant mounted the platform and were engaged in rolling a heavy pulley,--a part of the conveyor chute mechanism--across the floor of the scaffolding to put it back into place and were about to lift it when the scaffolding collapsed 'right out from under us.' The side of the scaffolding towards the mill gave way first and Hubbard and two others fell to the ground.
Smith was one of the six men engaged in the repair work. He testified that the accident occurred when a 2 X 8 timber, which was nailed to the uprights as a support for the floor, broke. There was a small knot in this piece which 'broke and shived out from that knot.'
Plaintiff assigns error to the giving of the following instruction:
'When an accident happens which is a pure accident--that is, one that could not have been prevented by the defendant--then plaintiff can not recover; and if you find in this case that this accident was such an accident as might be called a pure accident, where no one is to blame, and that the defendant was not guilty of any of the negligence as charged, then I instruct you that the plaintiff can not recover, and your verdict would be for the defendant.'
Plaintiff argues that the instruction was abstract and therefore erroneous because, under the evidence, the defendant was guilty of negligence as a matter of law and the jury could not find that the occurrence 'was a pure accident for which no one was to blame.'
The case is governed by the Employers' Liability Act, which provides, among other things, that the employer shall see that 'All scaffolding, staging, false work or other temporary structure is constructed to bear four times the maximum weight to be sustained by said structure, and such structure shall not at any time be overloaded or overcrowded. ORS 654.310(2). Violation of this statute was one of the charges of negligence in the complaint, and we may assume for the purpose of this case that the defendant did violate the statute and was therefore guilty of negligence as a matter of law. If that were so an instruction on unavoidable accident would be abstract and erroneous. Scheurmann v. Mathison, 67 Or. 419, 422, 136 P. 330. But in the court below the case was not presented by the plaintiff on the theory that the defendant was guilty of negligence as a matter of law. Counsel for the plaintiff did not ask for a peremptory instruction on any of his charges of negligence. On the contrary, he requested, and the court gave, the following instruction:
'You are instructed that the Employers' Liability Act of the State of Oregon provides that all scaffolding, staging or other temporary structure is constructed to bear four times the maximum weight to be sustained by said structure.
'In this case if you find that the defendant violated said Statute, then such violation would constitute negligence.
'If you further find that such negligence, if any, was a proximate cause of injuries to the plaintiff, then your verdict will be in favor of the plaintiff and against the defendant.'
By the foregoing instruction the plaintiff asked the court to submit to the jury as a question of fact whether or not the defendant was guilty of negligence in the particular covered by the request.
An instruction on unavoidable accident or 'pure accident,' as it is termed in the instruction complained of, where no negligence is charged on the part of the plaintiff (and none was charged here), 'is merely a repetition of the charge that, if no negligence has been proven on defendant's part proximately causing the accident, the verdict of the jury should be for the defendant.' Murphy v. Read, 157 Or. 487, 491, 72 P.2d 935, 937. The most recent expression of this court on the subject is the following from Igo v. Butler, 199 Or. 423, 430, 262 P.2d 675, 678, 'For a defendant to say that an accident was unavoidable is equivalent to saying that it was not caused by his negligence.' See, also, Denton v. Arnstein, 197 Or. 28, 47-48, 250 P.2d 407; McVay v. Byars, 171 Or. 449, 138 P.2d 210; DeWitt v. Sandy Market, Inc., 167 Or. 226, 240-241, 115 P.2d 184; Hanks v. Norby, 152 Or. 610, 54 P.2d 836.
In the instruction assigned as error the court defined a pure accident as one 'where no one is to blame, and the defendant is not guilty of the negligence as charged.' The instruction ascribed to 'pure accident' or 'unavoidable accident' the meaning those words have acquired in our decisions, and but repeats in different language the substance of other instructions given by the court to the effect that if the plaintiff had failed to prove to the satisfaction of the jury one or more of the acts of negligence charged, their...
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