Niemi v. Stanley Smith Lumber Co.

• Decision Date: 06 July 1915
• Citation: 149 P. 1033,77 Or. 221
• Parties: NIEMI v. STANLEY SMITH LUMBER CO.
• Court: Oregon Supreme Court

149 P. 1033

77 Or. 221

NIEMI v. STANLEY SMITH LUMBER CO.

Supreme Court of Oregon

July 6, 1915

In Banc.

Appeal from Circuit Court, Hood River County; W. L. Bradshaw, Judge.

On rehearing. Granted, and judgment of lower court reversed, and action dismissed, without prejudice.

For former opinion, see 147 P. 532.

Thos. H. Crawford, of La Grande (Crawford & Eakin, of La Grande, on the brief), for appellant. Leroy Lomax, of Portland, for respondent.

BENSON J.

Upon the rehearing in this case a question was suggested which had not been presented at the former argument herein, and this is the only matter which we shall now consider: Does the complaint state a cause of action in favor of the administrator? The substance of the complaint is that Oscar Laine died intestate, and that plaintiff is the duly qualified administrator of his estate; that the defendant corporation was and is engaged in operating a sawmill and lumbering plant; that a part of defendant's equipment consisted of an aerial cable for transporting sawlogs, which cable was operated by means of a donkey engine; that the cable was attached at each end to a tree about 60 feet above the ground; and that such trees were stayed by guy wires radiating in several directions. Then follow these recitals of the alleged acts of negligence causing the death of Laine:

"That the defendant carelessly and negligently, and in disregard of the lives and safety of its employés, and particularly of the deceased, selected an old, doty, faulty and unsafe tree to attach one end of said cable wire to, and did carelessly, negligently, and in disregard of the lives and safety of its employés, and particularly of the deceased attach and fasten one end of said cable wire to said old doty, faulty, and unsafe tree, and did carelessly and negligently, and in disregard of the lives and safety of its employés, and particularly of the deceased, attach and fasten to said old, doty, faulty, and unsafe tree, two certain wires, commonly known as guy wires, which were stretched and extended out from said old, doty, faulty, and unsafe tree the other ends of said guy wires being attached to two certain stumps, and each being stretched to a high tension and that said cable wire and said guy wires were of great weight, and produced much strain upon said old, doty, faulty, and unsafe tree, to which said wires were so attached, and said tree and said wires were in such condition, and were so existing, at the time the deceased received his injuries and lost his life, as hereinafter complained of. That the defendant carelessly and negligently, and in disregard of the lives and safety of its employés, and particularly of the deceased, attached said cable wire and said guy wires to said old, doty, faulty, and unsafe tree at a point about 60 feet from the ground, and carelessly and negligently, and in disregard of the lives and safety of its employés, and particularly of the deceased, failed, neglected, and omitted to top said tree above said wires, and carelessly and negligently, and in disregard of the lives and safety of its employés, and particularly of the deceased, left the top of said tree above said wires standing, which was unsafe and dangerous to the lives and safety of defendant's employés, and particularly the deceased, in working near and above said tree.

"That defendant carelessly and negligently, and in disregard of the lives and safety of its employés, and particularly of the deceased, negligently and carelessly failed and omitted to fall, clear, and clean the timber and brush away from and about said old, doty, and faulty tree, before so attaching said cable and said guy wires to said tree.

"That defendant, in disregard of the safety of its employés, particularly of the deceased, carelessly and negligently left standing, near said old, doty, and faulty tree, to which said cable and guy wires were so attached, certain timber, which was standing between said guy wires and in the vicinity of and near to said old, doty, and faulty tree, to which said cable and said guy wires were so attached.

"That by reason of said tree, to which said cable and said guy wires were so attached, being old, doty, and faulty, and by reason of the same not being topped above where said wires were so attached, and by reason of the timber and brush in the vicinity of said tree not being cut, removed, and cleared away, and by reason of the great tension of said cable and said guy wires, and the weight and strain upon the same, the said premises, and the vicinity about said old, doty, and faulty tree, were at the times and dates hereinafter complained of, and at the time and date deceased received his injuries, resulting in his death, as hereinafter complained of, an extremely dangerous and unsafe place for defendant's employés, and particularly the deceased, to

engage in their work of cutting and falling the timber about said premises, and near said old, doty, and faulty tree, as hereinafter particularly alleged.

"That on or about the 12th day of September, 1913, the deceased was employed by the defendant to cut down and fall timber for the defendant in the mountains, to be transported to its said sawmill and lumbering plant, and on the 14th day of September, 1913, while deceased was so employed, by the defendant, the defendant, in disregard of the lives and safety of its employés, and particularly of the deceased, carelessly and negligently instructed and directed the deceased to go to the vicinity of said old, doty, and faulty tree, to which said cable and said guy wires were so attached, and to the said extremely dangerous and unsafe premises, as hereinabove alleged, and carelessly and negligently, and in disregard of the lives and safety of its employés, and particularly of the deceased, did instruct and direct said deceased to cut down and fall one large green tree, which was standing between said guy wires, and at a distance about 40 feet from said old, doty, and faulty tree, to which said cable and said guy wires were so attached, as hereinabove alleged, and that said guy wires were only about 20 feet apart at the place where said tree, which deceased was so instructed and directed to fall, was standing.

"That deceased did, in pursuance to said instructions and directions, so given him by the defendant, proceed to and did cut and fall said green

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