Olsen v. North Pac. Lumber Co.

• Citation: 100 F. 384
• Decision Date: 05 February 1900
• Docket Number: 516.
• Parties: OLSEN v. NORTH PACIFIC LUMBER CO.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

100 F. 384

OLSEN v. NORTH PACIFIC LUMBER CO.

No. 516.

United States Court of Appeals, Ninth Circuit.

February 5, 1900

E Mendenhall and Watson & Beekman, for plaintiff in error.

Rufus Mallory, for defendant in error.

Before McKENNA, Circuit Justice, and ROSS and MORROW, Circuit Judges.

McKENNA Circuit Justice.

The parties were, respectively, plaintiff and defendant in the court below, and we will so designate them. The plaintiff sued to recover damages for injuries sustained in the sawmill of the defendant. The ground of action was the incompetency and negligence of one of the defendant's employes, to wit, one Riley Rearick, sawyer in its mill. The facts are substantially that at the time of the injury to the plaintiff the defendant conducted a sawmill in Portland, Or., and that one Riley Rearick and the plaintiff were co-employes, the one as sawyer, and the other as 'second off-bearer.' In the mill there was a certain main carriage and a certain pony carriage. By the former, logs were sawed into cants (logs in a certain stage of dressing), and by the latter the cants were sawed into lumber. The cants were removed from one carriage to another by means of a derrick and powerful machinery operated by steam. The derrick was situate between the carriages, and a chain, with hooks, was attached to it. It was the duty of Rearick, as sawyer, to operate the machinery which moved the derrick, and of the off-bearer to handle the hooks attached to the derrick, place them upon the cant when it was to be conveyed to the pony carriage, and remove them when the cant was in position on the carriage. The same derrick and hooks were used for both carriages. The operation was as follows: When a cant was to be placed upon the pony carriage, the 'second off-bearer' (plaintiff) placed the hooks upon the cant. The sawyer started the machinery which lifted the cant, and it was swung around by the derrick, and by the aid of the off-bearers placed on the pony carriage. The hooks were then to be released by the 'second off-bearer,' and the carriage started towards the saw by the sawyer. In the language of a witness, 'the operation consists in loading the cant on the carriage or wagon; it is nothing more or less than a wagon on wheels; and as soon as the cants are loaded, and the hooks taken off, why the wagon is ready to go. The next move is to start the wagon or carriage towards the saw for the purpose of sawing up cant. ' The controversy between the parties hinges in part upon what notice and care this should have been done by Rearick. The plaintiff in error claiming that it should not have been done until he was seen to have been away from the carriage; the defendant in error claiming that it was proper to start the carriage if the hooks were released, and that they were released before Rearick started the machinery. It is contended that defendant in error is nevertheless chargeable because Rearick, the sawyer, was incompetent and negligent, and that the defendant employed him and retained him knowing him to be so.

We need not detail the evidence. There was testimony to the effect that Rearick had been employed by the defendant for two years continuously, and that he had had ten years' experience in a sawmill, and that he had been first employed on the main carriage, but took charge of the pony carriage as sawyer about two years before the injury to plaintiff. There was conflicting testimony as to the reputation of Rearick for carelessness and recklessness, but it was not shown that the defendant had actual knowledge of such reputation, or that the plaintiff had, except Rearick testified that he walked up to Olsen as soon as he was hurt, and asked him 'how bad he was hurt,' and he said, 'You careless s-- of b-- I knowed you would do it.'

On the instructions requested and refused, certain errors are based which present the following propositions: (1) That it was a question of fact for the jury to decide whether it was reasonably necessary for plaintiff's safety as 'second off-bearer' that Rearick should have been charged by the defendant with the duty of paying attention to and looking out for him, and to give some signal or warning before starting or moving the carriage towards the saw, and that the court erred in refusing to so instruct the jury, and also erred in instructing 'that there was no testimony in the case to show that there was any duty on the mill company to provide rules and regulations as to how the saw should be started; that the law enjoined Rearick to be careful, and the mill company could not make that any stronger than the law made it.' (2) That incompetency was a question of fact, and that, besides, it was constituted of the habits of Rearick as well as of his knowledge, and that the court erred in assuming that there was no evidence of his incompetency, and submitting alone to the jury the fact of his negligence, (3) That the plaintiff was not chargeable with notice of Rearick's negligence from his general reputation, or of special acts of negligence, of which he was not to shown to have knowledge.

1. The court made a distinction between incompetency, properly so called, and negligence. Of the former the court said there was no evidence. The latter was submitted to the jury as a question of fact. There is certainly a difference between the ability to perform work and negligence in performing it. This difference was recognized in the complaint. It was recognized in the evidence. The court was therefore justified in assuming it, and submitting the question to which the evidence was addressed. There was no conflict in the evidence of the experience of Rearick, and no question made of its sufficiency to make him skillful. The evidence was entirely directed to the manner in which he performed his work, and the knowledge of it by plaintiff in which he performed his work, and the knowledge of it by plaintiff and defendant. The distinction made by the court was therefore not erroneous.

2. The contention that the defendant should have directed Rearick as sawyer by rules and regulations to observe care to the plaintiff as off-bearer cannot be sustained. To observe such care was essentially Rearick's duty, assumed in and by his employment. The business was not complex. There was no evidence that it was customary in sawmills to direct employes by special rules, and it could not be so held as a matter of law or submitted to the jury to decide without evidence. In complex employments like railroads, rules have been held to be necessary....