Niemi v. Stanley Smith Lumber Co.

• Decision Date: 06 April 1915
• Citation: 147 P. 532,77 Or. 221
• Parties: NIEMI v. STANLEY SMITH LUMBER CO.
• Court: Oregon Supreme Court

147 P. 532

77 Or. 221

NIEMI v. STANLEY SMITH LUMBER CO.

Supreme Court of Oregon

April 6, 1915

Department 1.

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

Action by Joel Niemi, administrator of Oscar Laine, deceased against the Stanley Smith Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for damages for personal injuries causing the death of Oscar Laine; the plaintiff being the administrator of decedent's estate. The circumstances surrounding the accident, so far as they are of value here, are as follows Defendant is a corporation engaged in the manufacture of lumber in Hood River county. In this occupation it maintains a number of logging camps in whose vicinity the trees are felled and prepared for the sawmill, to which they are subsequently transported. Among other equipment for this purpose defendant had a large aerial wire cable attached at each end to a standing tree, about 60 feet from the ground so as to permit the logs to be hoisted and carried along said cable, and down out of the mountains. The upper one of these trees, which will be called, for the purposes of this discussion, "the gin tree," had the aerial cable attached thereto by a heavy iron band, or collar, to which were also attached five guy wires, which radiated from the collar to stumps used as anchors, which wires varied in length from 100 to possibly 125 feet. The aerial cable and guy wires were tightly stretched for staying the gin tree.

On the 12th of September, 1913, decedent, as an employé of defendant, with another, was engaged in felling trees in the vicinity of the gin tree above mentioned. They had been so employed until about 5 o'clock in the afternoon, when they cut down a tree, which in falling struck a guy wire near the stump to which it was anchored, and the shock of the impact was so great as to break the gin tree in two at a point about 22 feet below the collar to which the cable and guy wires were attached. As the gin tree broke, one of the falling branches struck the decedent, causing injuries from which he subsequently died, and this action followed. From a judgment for plaintiff, defendant appeals.

Robert S. Eakin, Jr., of La Grande (Crawford & Eakin, of La Grande on the brief), for appellant. Leroy Lomax, of Portland, for respondent.

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

It is conceded by the parties that the plaintiff's action is based upon defendant's liability at common law. There are two assignments of error.

Defendant first contends that the trial court erred in denying a motion for a nonsuit. This contention is based upon the grounds: First, that there is no evidence tending to prove any negligence upon the part of defendant in selecting the gin tree, or using it for the purpose to which it was applied. It is not necessary to go into the evidence extensively upon this point, but it is sufficient to say that, while there is some conflict in the testimony, one witness who examined the remains of the tree after the accident says that "it was a dead tree; it showed that it had been dead for some time." The evidence also discloses that the cable had been attached during the preceding fall, and we think that it was a question for the jury to answer as to whether defendant had been negligent in the selection thereof.

Defendant next insists the negligence alleged by plai...