Jenkins v. Carman Mfg. Co.

• Decision Date: 07 March 1916
• Parties: JENKINS v. CARMAN MFG. CO.
• Court: Oregon Supreme Court

155 P. 703

79 Or. 448

JENKINS v. CARMAN MFG. CO.

Supreme Court of Oregon

March 7, 1916

In banc. Appeal from Circuit Court, Multnomah County; Henry E McGinn, Judge.

Action by Manoah A. Jenkins against the Carman Manufacturing Company. From judgment for defendant, plaintiff appeals. Affirmed.

This is an action for personal injuries which plaintiff claims to have sustained by reason of defective machinery or appliances in defendant's sawmill. That portion of the complaint which declares the cause of plaintiff's injury is as follows:

"Among the machines, instrumentalities, and devices used by said company is one certain machine known as a lumber roller or conveyor, which was used to convey slabs of lumber sawed from logs to the edger. Such lumber conveyor or roller is composed of a series or system or number of rolls, the exact number being unknown to plaintiff, which are on a common level and located in a common box or place, such rolls being operated by steam power, and so adjusted that they are from 18 inches to 2 feet apart. One of said rolls was at the time of the injury to plaintiff, hereafter alleged, broken and unfit for use, and had been broken and unfit for use for a period of approximately one year prior to the injury to plaintiff; that of the broken condition of said roll the defendant well knew for approximately one year prior to the injuries to plaintiff. With such knowledge the defendant carelessly, recklessly, and negligently failed and neglected to repair the said roller or to replace the same with another roll, and that such roller could have been repaired or replaced without interfering with the efficiency of the business of the defendant or with the labor of this plaintiff. Such roll in its broken and defective condition constituted and was a menace and danger to the laborers of this defendant, and more especially to this plaintiff, and that defendant, with knowledge of the condition of said roll, required its laborers and more especially this plaintiff to work in and about and with said machine with its defective and broken roll as above alleged, with the deliberate intent on the part of the defendant to subject its workmen, and more especially this plaintiff, to dangers of injury and to injury therefrom."

The pleading then states that while plaintiff was at work in the regular discharge of his duties and was off-bearing lumber from the saw, by reason of the broken condition of said roller a piece of lumber caught therein and by other wheels was thrown against plaintiff with great force and violence whereby he was injured, which injuries are fully specified and that he still suffers therefrom. It further declares that the injuries to plaintiff were not caused through any fault or wrong of plaintiff, but were caused solely through the carelessness, recklessness, and negligence of the defendant and by his deliberate intent to expose this plaintiff to injury; that plaintiff is damaged in the sum of $2,500; that heretofore and prior to the institution of this action and after the injury of plaintiff, he submitted his claim to the Workmen's Industrial Insurance Commission of Oregon which claim was allowed in the sum of $42 a month for two months, totaling $84; that the allowance was made, as plaintiff is informed and believes, only for an alleged partial depreciation of plaintiff's earning capacity, and was not intended to involve, nor did it involve, any pain or suffering or loss of powers of locomotion and physical endurance; and that by the wrongs herein set forth plaintiff has been injured in excess of the sum allowed by the said Industrial Insurance Commission in the sum of $2,416. There was a general demurrer to the complaint, which was sustained and plaintiff appeals.

Isham N. Smith, of Portland (Logan & Smith, of Portland, on the brief), for appellant. Geo. M. Brown, Atty. Gen., and J. O Bailey, Asst. Atty. Gen., amici curiæ. Gus C....