Lowe v. Oak Point Piling & Lumber Co.
| Decision Date | 25 September 1913 |
| Citation | 135 P. 219,75 Wash. 518 |
| Court | Washington Supreme Court |
| Parties | LOWE v. OAK POINT PILING & LUMBER CO. |
Department 1. Appeal from Superior Court, Cowlitz County; H. E McKenney, Judge.
Action by Marcellus C. Lowe against the Oak Point Piling & Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.
Hudson Holt & Harmon, of Tacoma, and A. H. Imus, of Kalama, for appellant.
W. P La Roche and Isham N. Smith, both of Portland, Or., and J. E. Stone, of Kalama, for respondent.
Action for personal injuries. The plaintiff recovered a judgment in the court below. The defendant has appealed.
The facts in this case are as follows: The defendant was engaged in logging operations in Cowlitz county, in this state. On April 15, 1910, the plaintiff was in the employ of the defendant company as a hook tender. As such hook tender he was in charge of a crew of men in removing logs from the woods to a point called a loading station. A donkey engine was situated near the loading station, and from this donkey engine a line consisting of a steel cable extended to the point in the woods where the logs were to be dragged toward the engine. The distance was between 500 and 600 feet. The engine was located upon one side of a hill and the logs were in a canyon on the opposite side of the hill. It was necessary, therefore, to drag the logs up a hill and then on a downgrade to the engine. The logging crew consisted of an engineer, who operated the donkey engine; an assistant, known as a chaser, near the engine at the loading station; swampers, whose duty it was to clear roads for the logs; a chaser, who was required to follow the log while it was being dragged in; rigging men, whose duty it was to look after the cables and rigging; and a signal boy, who was stationed on top of the hill in sight of the engine and the log. These employés were all under the control of the plaintiff and were required to obey his orders. He was not authorized to discharge men, but when he was dissatisfied he would so report to the superintendent and the man with whom he was dissatisfied would be investigated or relieved from duty. The engineer had been in the employ of the company for a period of more than five years. The plaintiff had been in its employ for a period of five years. Both were experienced men in the woods. On the date above stated, the plaintiff was directing the operation of dragging a log from the woods to the loading station. A few logs had been dragged over the road. The log that was being drawn at the time of the accident was from 25 to 30 feet in length, about 3 feet in diameter at the larger end, and weighed about 3,000 pounds. It was being dragged up the hill. The plaintiff and his chaser were following the log. It became lodged against a smaller log which was buried in the ground. This small log was called a windfall. It lay diagonally across the path of the logging road. When the log which was being dragged to the loading station lodged upon the windfall, a signal was given to the engineer to stop. He did so. The plaintiff and his chaser changed the choker, which was a cable extending around the log which was being dragged, so that the pull upon the log by the engine was intended to raise the log over the windfall. When the choker had been changed, the plaintiff took a position in front of the windfall and to one side of the log which was lodged against it; his chaser stood behind the windfall and to one side of the log. The plaintiff then gave to the signal boy, who was upon the top of the hill, the signal to go ahead. The signal was communicated to the engineer. At about the time the choker was being readjusted upon the log by the plaintiff, the engineer called the chaser at the loading station to operate the engine while the engineer repaired a glass which was out of order upon the engine. When the signal to go ahead was given, it was communicated to the engine, and the engine was started to drag the log. Three or four pulls were made upon the log before it started. It did not roll upon the windfall as the plaintiff had intended but swung the windfall out of the ground. As it did so the plaintiff gave the signal to stop. The signal was immediately communicated to the engine and the engine was stopped, but not until the windfall had swung around and struck the plaintiff upon the legs, breaking both of them.
It is alleged in the complaint that the engineer was negligent in calling to his assistance an inexperienced man, and also in not stopping the engine immediately upon the signal to stop being given. At the close of the plaintiff's case the defendant moved the court for a directed verdict upon the ground that there was no evidence of negligence of the engineer; that the engineer in charge of the engine at the time was a fellow servant of the plaintiff; and that there was no evidence that the man who was called to the engine by the engineer just prior to the time the accident happened was an inexperienced man. The court denied the motion, except that the action was dismissed as to the regular engineer who was a party defendant in the case. At the close of all the evidence the defendant asked the court to instruct the jury to render a verdict in favor of the defendant. This motion was also denied. The appellant contends here, as was contended at the trial, that the motion for a directed verdict should have been sustained upon the grounds stated.
There is no evidence worthy of the name that the man who was operating the engine at the time the accident happened was an inexperienced man. There is some evidence to the effect that he had run the engine at times before this; and all the evidence shows that he was competent to run the engine. There was no evidence that he had ever before had an accident, or that he was careless in manipulating the engine, except at this particular time. Nor is there any evidence in the record that the regular engineer was negligent in calling the chaser to run the engine at the time he did. The only possible negligence in the case is the fact that the engine was not stopped immediately upon the giving of the last signal to stop. If the action cannot be maintained upon the theory that it was the duty of the engineer to stop the engine...
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