Musser-Sauntry Land, Logging & Mfg. Co. v. Brown

• Decision Date: 02 November 1903
• Docket Number: 1,876.
• Citation: 126 F. 141
• Parties: MUSSER-SAUNTRY LAND, LOGGING & MFG. CO. v. BROWN.
• Court: U.S. Court of Appeals — Eighth Circuit

126 F. 141

MUSSER-SAUNTRY LAND, LOGGING & MFG. CO. v. BROWN.

No. 1,876.

United States Court of Appeals, Eighth Circuit.

November 2, 1903

Morton Barrows, for plaintiff in error.

Otto Kueffner and Albert Schaller, for defendant in error.

Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

THAYER Circuit Judge.

Fred Brown, the defendant in error, brought this action in the lower court against the Musser-Sauntry Land, Logging &amp Manufacturing Company, the plaintiff in error, for personal injuries which he claimed to have sustained while in its service and in consequence of its culpable negligence. The act of negligence complained of consisted in the alleged fact that the defendant company supplied him with an ax having a short handle, with which to unload logs that he was engaged in unloading, when in the exercise of ordinary care it should have provided him with an ax having a longer handle. The facts which the evidence adduced at the trial tended to establish were as follows: The plaintiff was employed as a servant of the defendant company in unloading logs from sleds on which they were hauled from the woods, where they had been cut, at a place called 'the landing.' This landing was a level place, which had been overflowed with water to form ice, the season being winter, so that when the spring came and the ice thawed the logs could be floated to the place where they were to be transported. The logs that were being handled varied in length from 12 to 18 feet. They were hauled to the landing on large logging sleds, which were quite wide, and were run on ice tracks or roads that had been formed leading from the woods to the landing. The logs were piled upon these sleds tier upon tier, sometimes to the height of 10 or 12 feet, and were bound by chains to hold them in place until they reached the) landing. At that place it appears to have been the plaintiff's duty to loosen the binding chains by knocking out a hook at one end of one of the chains with the head of an ax or other suitable implement. When the hook was thus knocked out the upper tiers of logs rolled off of their own weight onto the landing, or could be made to do so easily if they remained in place after the hook was unfastened. The plaintiff testified, in substance, that on one or two occasions he requested the defendant company, through its foreman, to provide him with an ax having a longer handle than the one he was then using so that he could unload logs with greater safety, and that the foreman, in response to this request, told him to go ahead and work with the ax which he was then using, saying further, 'the loads are not very big now, you can get along with the one you have got and I will get you one all right'; that the day succeeding one of these conversations an unusually large load of logs, six or seven tiers high, was hauled to the landing; that he knocked out the hook of the binding chain, using an ax having a handle of ordinary length, such as he had been using, not having been provided at the time with one having a longer handle; that when the hook was released one of the logs rolled off and over him as he was attempting to escape, and that he was thereby severely injured.

At the conclusion of all of the evidence the defendant company, through its counsel, moved the court to direct a verdict in its favor, which the trial court declined to do. The case was thereupon submitted to the jury, and resulted in a verdict for $6,600. To reverse the judgment that was subsequently entered upon this verdict the defendant below has brought the case to this court on a writ of error.

Counsel for the plaintiff in error urge a reversal of the judgment below for several reasons, but, according to the view which we have felt compelled to take of the case, it will only be necessary to consider one question, and that is whether the plaintiff below, on the undisputed evidence in the case, was not himself guilty of contributory negligence. He conceded several times during the course of his examination as a witness that the work in which he was engaged at the time of the accident was exceedingly dangerous work, and that he fully appreciated that fact and the risk of injury before he was hurt. When he knocked out the hook by which the binding chain was held he was compelled to stand in front of a high load of logs and in close proximity thereto, so that if one or more of the logs fell when the hook was released he...