Marks v. Columbia County Lumber Co.

• Decision Date: 06 July 1915
• Parties: MARKS v. COLUMBIA COUNTY LUMBER CO.
• Court: Oregon Supreme Court

149 P. 1041

77 Or. 22

MARKS v. COLUMBIA COUNTY LUMBER CO.

Supreme Court of Oregon

July 6, 1915

Department 1.

Appeal from Circuit Court, Columbia County; J. W. Campbell, Judge.

Action by J. F. Marks against the Columbia County Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The substance of the complaint is that the plaintiff was engaged in the employ of the defendant as a common laborer handling lumber about its sawmill in Columbia county; that on January 12, 1914, by direction of the foreman of the lumber yard, to whose orders the plaintiff was subject, the latter was sent to drive a horse owned by the defendant and used to haul trucks loaded with lumber to be piled on and about a dock upon the Columbia river for shipment. The plaintiff alleges that the horse furnished was dangerous, unruly, and wholly unsuited for the work; that the trucks had but two wheels which were in the center thereof, and were also dangerous and difficult to handle; that he was inexperienced in that kind of work; that the passageways through which he was required to haul the trucks were narrow and piled high with lumber on each side, making it difficult to drive through them with the trucks in safety, or without collision or accident. The plaintiff avers that the defendant knew, or might with reasonable diligence have known, about the disposition of the horse, the danger and unsuitableness of the trucks, and the alleys in which they were required to be operated. The particular grievance of which complaint is made is that while plaintiff was driving through one of the narrow passages with the horse hitched to a truck load of lumber the animal became unmanageable and got beyond the control of the plaintiff, so that the load caught the plaintiff with great violence and jammed his shoulder against the adjacent lumber, whereby his collar bone was dislocated from his shoulder blade, and he was otherwise hurt, to his great damage. The defendant denies the complaint in important particulars, notably with reference to the vicious nature of the horse, the unsuitableness of the trucks, and the inconvenience of the alleys. The defendant also alleges that the plaintiff knew all about the situation and assumed the risks of the work mentioned; that the horse was tractable and well suited for the purpose; and that the injury sustained by the plaintiff was due to his own negligence. The answer was traversed by the reply in all material particulars. A jury trial resulted in a judgment for the plaintiff, from which the defendant appeals.

T. H Crawford, of La Grande (Crawford & Eakin, of La Grande, and Geo. McBride, of Portland, on the brief), for appellant. E. B. Tongue, of Hillsboro (Glen R. Metsker, of St. Helens, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

The first assignment of error is to the effect that the court erred in permitting several witnesses to testify about the acts and conduct of the horse in question after the accident happened. In treating of this subject, the rule is thus stated in Kennon v. Gilmer, 131 U.S. 22, 25, 9 S.Ct. 696, 697 (33 L.Ed. 110):

"But evidence of subsequent misbehavior of the horse might properly be admitted, in connection with evidence of his misbehavior at and before the time of the accident, as tending to prove a vicious disposition and fixed habit, and to support the plaintiff's allegation that the horse was not safe and well

broken. The length of time afterwards to which such evidence may extend is largely within the discretion of the judge presiding at the trial."

There is ample testimony in the record on the subject of the misbehavior of the horse at the time of the accident. There is other evidence tending to show that on previous occasions he was hard-mouthed, high-spirited, difficult to control, and that he moved suddenly or stopped suddenly apparently as the whim suited him. The defendant argues that it is a well-known fact that a horse having run away once will ever afterward do the like if he has the opportunity, although previously he had been well broken and not addicted to that habit. This objection goes merely to the weight of the testimony, for, on the other hand, a horse having vicious habits, like a person, will manifest them repeatedly, and it would be competent to prove this general disposition by the conduct of the horse both before and after the occurrence in question.

The next assignment is that the court erred in permitting different witnesses to testify that in their opinion the horse in question was not a safe one for the work. The object of opinion or expert testimony is to enlighten the minds of jurors on questions of fact involving special skill and knowledge as to matters not within the comprehension of ordinary jurors; but it can never be left to an expert to give his opinion on the ultimate question to be determined. In this instance, whether or not the horse was a safe instrumentality with which to perform the labor required of the plaintiff was for the determination of the jury and not for the decision of any expert. Moreover, the habits characteristics, and disposition of the well-known domestic animal, the horse, is a matter of such common knowledge that it would not require the testimony of an...