Isaacson v. Beaver Logging Co.

• Decision Date: 08 September 1914
• Citation: 143 P. 938,73 Or. 28
• Parties: ISAACSON v. BEAVER LOGGING CO.
• Court: Oregon Supreme Court

143 P. 938

73 Or. 28

ISAACSON v. BEAVER LOGGING CO.

Supreme Court of Oregon

September 8, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; T. J. Cleeton, Judge.

Action by John Isaacson, a minor, by Oscar Matson, his guardian ad litem, against the Beaver Logging Company, a corporation, to recover damages for a personal injury alleged to have been caused by the defendant's negligence. From a judgment for the plaintiff in the sum of $1,200, the defendant appeals. Reversed.

F. S. Senn, of Portland (Senn, Ekwall & Recken, of Portland, on the brief), for appellant. Arthur I. Moulton, of Portland, for respondent.

MOORE J.

It is contended that in denying a motion for a nonsuit when the plaintiff's testimony in chief had been received, an error was committed. It appears from a transcript of the testimony that at the time the plaintiff was hurt he was nearly 20 years old. He had worked at logging nearly 3 years having been employed by the defendant about four months at its logging camp in Columbia county, Or., as second loader. His duties as such required him to assist the head loader, whose orders he was obliged to obey in placing on railway trucks logs for transportation. Logs were dragged by donkey engines to the top of an incline, down which they were rolled to a retarding timber in front, called a brow skid. This checking log was placed parallel with the defendant's line of railroad a little lower than swivel bunks on the platforms of short railway trucks, and about three feet from their sides. In order to load logs there were driven into each end thereof hooks to which were attached the ends of a crotched rope, the trunk of which, passing over a pulley at the top of a gin pole, extended to the drum of a donkey engine stationed at the top of the incline. An application of power to the machinery lifted above the brow skid the log, which, being swung over the railway, was lowered to two trucks set at a sufficient distance from each other to accommodate the length of the load, the logs being securely chained to the bunks on the trucks. When thus arranged the front truck would be attached to the locomotive or to the truck immediately in front, thereby making up a train. In returning unloaded trucks they would be coupled together, forming separate four-wheeled flat cars about eight feet in length.

The defendant, on December 12, 1912, hauled, on one of such unloaded trucks, to the incline an iron spool, called a gypsy, having through the center a hole into which the spindle of a donkey engine was to be inserted. The defendant's superintendent directed that the spool should be unloaded and taken to the place where it was to be used at the top of the incline. An iron bar was inserted in the hole in the gypsy, and, the brakemen assisting in raising the spool, one end of the bar was placed on the plaintiff's shoulder while the other end rested on the shoulder of the head loader. The part of the train on which the gypsy was carried could not be switched to the proper place beside the margin of the incline, and the spool had to be carried over the platforms of two trucks before it could be removed from the train. When the plaintiff, who walked in front, reached the right place to ascend the incline, he attempted to step from the edge of the truck to the brow skid, but, his assistant not keeping pace with him at that instant and giving the bar a swing, Isaacson lost his balance and fell, the spool slipping forward on the bar and breaking his collar bone in several places, necessitating the removal of fragments thereof.

The plaintiff testified in effect that when ordered by the defendant's superintendent to unload the spool, the witness suggested that it should be rolled off the truck, but the head loader notified him that the gypsy should be carried to the donkey engine at the top of the incline; that he estimated the weight of the spool to be 250 or 300 pounds but did not know the weight thereof or the danger to be incurred in attempting to obey the order of the head loader that when he reached the proper place to leave the truck he notified his assistant that he was then to step to the brow skid; that the defendant's superintendent, who was present and saw the witness attempt to comply with the direction given, did not warn him of the danger to be incurred, or direct a different method of removing the spool.

The plaintiff was probably a competent loader and knew how properly to discharge the duties devolving upon him with respect to placing the logs on trucks for transportation. He had never had any experience, however, in unloading gypsies from cars, and, having been informed that the spool was to be carried up the incline and half of the weight placed on his shoulder, he proceeded as best he could to obey the orders, which he asserts had been given, by taking the only course available. His superiors who knew these facts should have warned him of the dangers which he might have incurred in attempting to step a distance of about three feet, burdened as he was, and directed some other method of unloading the gypsy, but, not having done...