Nelson v. St. Helens Timber Co.

• Decision Date: 22 July 1913
• Citation: 66 Or. 570,133 P. 1167
• Parties: NELSON v. ST. HELENS TIMBER CO.
• Court: Oregon Supreme Court

133 P. 1167

66 Or. 570

NELSON v. ST. HELENS TIMBER CO.

Supreme Court of Oregon

July 22, 1913

Department 1.

Appeal from Circuit Court, Multnomah County; Robt. G. Morrow, Judge.

Action by Fritz Nelson against the St. Helens Timber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action by Fritz Nelson against the St. Helens Timber Company, a corporation, to recover damages for a personal injury. The complaint alleges the defendant's incorporation; that it operated a railroad and used cars which were coupled by a link and a pin; that on June 27 1911, the plaintiff was and for several months prior thereto had been employed by the defendant in pilings logs on a rollway; that he was inexperienced in coupling cars, which fact was known to the defendant's agents who neglected to notify him of the danger incident thereto; that pursuant to defendant's order he undertook to make a coupling and in doing so his left hand was crushed, rendering it useless to his damage in a specified sum. The answer denies the material averments of the complaint and alleges that the injury complained of was occasioned by the plaintiff's carelessness; that the risk was assumed by him; and that the hurt was caused by the negligence of a fellow servant. The reply denies the averments of new matter in the answer, and the cause having been tried resulted in a verdict and judgment in plaintiff's favor for $3,000, and the defendant appeals.

Rauch & Senn, of Portland, for appellant.

Seton &amp Strahan, of Portland, for respondent.

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

It is contended that an error was committed in refusing to set aside the judgment and to grant a new trial; the application therefor being based on the ground that the amount of damages awarded was excessive. The defendant's abstract contains what purports to be a copy of the order denying the motion assigning as a reason therefor that article 7, § 3, of the Constitution, as amended, deprived the trial court of power to grant such relief. Though the ruling complained of was not made a part of the bill of exceptions, it is argued that since the order was set forth in the abstract, to which no objection was made until plaintiff's brief was filed, the alleged error should be considered.

The assignments of error on appeal from a judgment in a law action are equivalent to the averments of a complaint, which allegations are impliedly denied by the adverse party. The issue thus formed is to be determined from a consideration of a bill of exceptions, which affords the only available evidence applicable to the matter. As the formal statement in writing of the exceptions taken to the rulings of the court, as settled and allowed, does not contain any reference to the motion referred to, the action of the court thereon is not before us for consideration.

An exception having been taken to a part of the court's charge, as evidenced by the transcript but inadvertently omitted from the bill of exceptions, it is insisted that an error was committed in instructing the jury as follows: "When an employer takes on a new hand, it is his duty to explain to the man the work, if there is any danger about it, and point out to him where the danger is and how it is likely to arise, and if he moves a man from one employment to another it stands on the same footing. He must see that his employés are instructed as to the dangers of the business unless the employé can see them, and any man of his age, intelligence, and experience can know what they are without explanation, or unless he is experienced or says he is. If he claims to be an experienced man in that line of work, why then you don't have to tell a man a thing he already knows." In order to render the language complained of relevant, it becomes necessary to state the facts involved so as to determine whether or not the plaintiff possessed such a degree of knowledge of the instrumentalities causing the hurt as to enable the court to say, as a matter of law, that he assumed the risks incident to the employment in which he was engaged at the time he was hurt. The testimony tends to show that plaintiff at the time he was hurt was 34 years old. He is not a native of this country and had been in the United States only a year and a half. He could not speak the English language but understood a few words thereof. After working for the Chapman Timber Company five months, engaged in cutting wood and sniping logs, he was employed by the defendant and worked for it prior to the hurt, eight months rolling logs down an inclined way and piling them near a railway operated by the defendant. The cars used to transport logs from the camp to the market consisted of four wheel trucks, about ten feet long, having a cross bumper on which the ends of the logs rested. Two trucks were used for each load; the forward carriage being connected by an iron link held in place by an iron pin to the car or locomotive immediately in front of it. Until the day preceding the accident the plaintiff had never assisted in loading logs upon trucks, but on that day, the man whose duty it was to help perform that service being absent, Nelson, at the direction of C.M. McDonnell, who had charge of that branch of the work, assisted in placing logs on the...