Lamm v. Silver Falls Timber Co.
| Decision Date | 23 April 1929 |
| Citation | 277 P. 91,133 Or. 468 |
| Parties | LAMM v. SILVER FALLS TIMBER CO. [*] |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.
Action by Joe C. Lamm against the Silver Falls Timber Company. Judgment for plaintiff, and defendant appeals. Affirmed.
This is an action for damages, for personal injuries sustained by plaintiff while riding on defendant's logging railroad. Stating his cause of action, the plaintiff avers, among other things, that, on November 9, 1926, and long prior thereto the defendant was and had been engaged in the business of operating a logging camp and logging railroad, and had in its employ a large number of men; that one of its lines of railroad extended between its logging camp which was located in Marion county and the city of Silverton, about 20 miles distant and in the same county; and that, in order to assist its employees in going from the camp to Silverton, defendant habitually invited its employees who wished to journey to Silverton to ride on its logging trains operated over this railroad. He avers that for some time prior to November 9 1926, he had been in the employ of defendant at its logging camp; that about three days prior to that date he decided to go to Silverton for a few days and was invited by defendant to make the trip on its railroad and also to make use of the railroad when he was ready to return; that he accepted defendant's invitation, rode to Silverton on its logging train, and, on the 9th day of November, at the invitation and with the knowledge and consent of defendant, boarded defendant's logging train, intending to ride back to the camp. He avers that on this particular day the train consisted of a heavy engine and 27 logging cars or trucks. He then avers that, on starting for the camp, while the train was still within the limits of Silverton, and moving at a speed of about 25 miles per hour, the defendant carelessly and negligently, and suddenly and without warning applied the brakes on the engine attached to the cars without applying brakes on the empty cars, and carelessly and negligently caused the empty cars or trucks to stop suddenly, and to jolt and jar with such violence that plaintiff was thrown from the platform on which he was riding, upon the track of the railroad, and under the wheels of the logging trucks, whereby "plaintiff was cut, bruised, and mangled about the head and shoulders, and plaintiff's left arm was so crushed and injured that it was necessary to amputate the same between the shoulder and the elbow, and plaintiff was thereby caused to suffer great physical pain and mental anguish, and to lose time from his work and labor at which he was earning and was capable of continuing to earn the sum of $5.50 per day." Plaintiff demanded judgment in the sum of $50,000.
The defendant, answering, alleged, among other things, that prior to November 9, 1926, plaintiff had been in the employ of defendant; that while in such employ plaintiff desired to make a trip to Silverton, and that defendant invited plaintiff to ride to Silverton on its logging railroad, and further, invited and directed him to make use of the logging railroad in returning from Silverton to camp. Defendant admitted that plaintiff rode to Silverton on its logging railroad, and that, on November 9, 1926, at its invitation and with its knowledge and consent, plaintiff boarded that train in the city of Silverton with the intention of going back to camp. Defendant avers that it is not a common carrier of freight or passengers for hire, but, on the contrary, that the logging railroad has been used for the purpose of transporting logs belonging to it, and for the further purpose of transporting its workmen to and from their work that, prior to November 9, 1926, plaintiff and defendant entered into a contract of employment, and, as a part thereof, plaintiff entered upon the premises of defendant at Silverton, Or., and rode upon its logging train up to the woods where he was to work; that, on November 6, 1926, and while in the defendant's employ, plaintiff rode to Silverton on the logging train under his contract of employment, and there left the premises of the defendant; that, on November 9th, plaintiff again entered upon the premises of the defendant and went upon the logging train for the purpose of returning to defendant's logging camp in order that he might continue in the employment in which he had theretofore engaged. In its separate answer and defense the defendant further alleges that at all the times mentioned in the complaint and in its amended answer, the plaintiff and defendant had subjected themselves to, accepted the provisions of, and were covered by, the Workmen's Compensation Law of the state of Oregon. For a further and separate answer, the defendant asserts that at the time the plaintiff fell from the logging train he was standing on one of the trucks constituting the train while the train was in motion, and that at that time and place there was ample opportunity for the plaintiff to sit down upon the train and take and keep himself in a place of safety, but that plaintiff carelessly and negligently failed to sit down and persisted in standing up while the logging train was in motion.
The plaintiff, replying, denies that he was employed by defendant for any particular term. He alleges the facts to be that his employment was from day to day at a stipulated wage per hour, and that no specified term of employment was included therein. He denies that, as a part of his contract of employment, he entered upon the premises of defendant at Silverton and rode upon defendant's logging train into the woods where he was to work. He avers that at the close of work on November 6, 1926, he left the employ of defendant and that he left the premises where he had been employed; that, while not an employee of defendant, and while not acting under its direction or control, or for its use or benefit, "and while acting solely about his own affairs, * * * in which defendant was in no wise interested," he went to Silverton and there remained until November 9th, at which time he boarded the logging train of defendant for the purpose of riding to the place where he was residing near the defendant's logging camp in Marion county. Plaintiff denies that he had subjected himself to the provisions of the Workmen's Compensation Law of Oregon.
At the conclusion of the testimony, and after both sides had rested, the defendant requested the court to direct the jury to return a verdict in its favor, for the following alleged reasons: First, that the pleadings and testimony show that the case is one coming under the protective provisions of the Oregon Workmen's Compensation Law, and that the matter involved is within the jurisdiction of the State Industrial Accident Commission, and that no case had been made out against the defendant. Second, that if it be assumed that the State Industrial Accident Commission has no authority or control over the cause, but that the cause of action can be maintained and prosecuted against the Silver Falls Timber Company the plaintiff has failed to make out a case of negligence against the defendant, and the evidence discloses that the plaintiff was guilty of contributory negligence.
The trial resulted in a judgment for plaintiff in the sum of $25,000.
The defendant appeals, on the ground that the case is within the provisions of the Oregon Workmen's Compensation Law (Or. L. § 6605 et seq.) and that no negligence was proved.
Omar C. Spencer, of Portland (Carey & Kerr and Omar C. Spencer, all of Portland, on the brief), for appellant.
Arthur I. Moulton, of Portland (Lord & Moulton, of Portland, on the brief), for respondent.
Miles H. McKey, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for State Industrial Accident Commission.
BROWN, J. (after stating the facts as above).
The plaintiff's testimony indicates that at the time of the injury he was 44 years of age, resided in Silverton, and was in good health; that after reaching the age of 17 or 18 years he had spent his life as a workman in the woods; that he had done "logging, slung hook, attended camp, and chased, set choker; done practically all of the work that has to be done in the woods"; that he was getting $7.50 the last time he worked in logging, and $5.50 when he was chasing. He testified that he had worked for the defendant company at its camp hereinabove described for 20 or 24 months. Asked to describe the road from Silverton to the camp, he testified that there was a good road from Silverton to Silver Creek Falls, but that from Silver Creek Falls on to camp, a distance of 10 or 12 miles, the only way of ingress and egress consisted of the Silver Falls logging railroad and a trail. He testified that in his recent employment by the company he was in charge of the rigging crew, and that, when working at that particular task, his day's work began when he reached the donkey, "when the whistle blows at the donkey"; that he worked 8 hours a day and was paid by the hour; that he lived in one of the bunk houses at the camp, paid rent therefor, ate at the cook house, and paid for his meals; that, during the time they were moving camp, "they hauled us backwards and forwards over the road." His undisputed testimony shows that from the time they finished work at night until the next morning's work began they were not subject to the orders of any person, and that in the interim nobody undertook to tell them what to do. With reference to leaving the camp a few days before he got hurt, he testified:
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Lamm v. Silver Falls Timber Co.
...Multnomah County; Louis P. Hewitt, Judge. On rehearing. Former opinion and judgment of circuit court reversed. For former opinion, see 277 P. 91. J., COSHOW, C.J., and BEAN, J., dissenting. Omar C. Spencer and Frank S. Senn, both of Portland (Carey & Kerr and Omar C. Spencer, all of Portlan......