Olsen v. North Pacific Lumber Co.

• Decision Date: 03 November 1902
• Docket Number: 726.
• Citation: 119 F. 77
• Parties: OLSEN v. NORTH PACIFIC LUMBER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

119 F. 77

OLSEN v. NORTH PACIFIC LUMBER CO.

No. 726.

United States Court of Appeals, Ninth Circuit.

November 3, 1902

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

Dolph Mallory, Simon & Gearin and Rufus Mallory, for defendant in error.

Before GILBERT and MORROW, Circuit Judges, and HAWLEY, District Judge.

GILBERT Circuit Judge.

This is an action brought against the defendant in error by the plaintiff in error to recover damages for injuries which he sustained while in the employment of the defendant in error in its lumber mill. In the complaint the defendant in error is charged with negligence in retaining in its service one Riley Rearick, a fellow servant with the plaintiff in error. On the day when the accident occurred Rearick was the sawyer in charge of the 'pony saw,' and in connection therewith operated a steam derrick, by means of which logs or cants which had been sawed into proper shape were lifted from the floor of the mill and placed upon a saw carriage, where they were sawed into lumber. The derrick lifted the logs or cants by means of chains, on the ends of which were hooks which grappled them. The plaintiff in error assisted in this operation in the capacity of second off-bearer. It was his duty, after the cants had been lifted from the floor and placed upon the carriage preparatory to being sawed into lumber, to detach the hooks from the cants. When the cants were free it was the duty of Rearick to start the carriage toward the saw. On the occasion of the accident a cant had been placed on the carriage, and the plaintiff in error had removed the hooks from the cant, when Rearick caused the carriage to start; but the plaintiff in error at that time had his foot upon the saw carriage in such a position that in the forward movement of the carriage his foot was caught and crushed. In his complaint he alleges that Rearick was habitually careless and negligent in the performance of his duty as sawyer; that the defendant in error knew that fact and negligently retained him in its employment; and that the defendant in error was further negligent in not giving proper instructions and in not providing suitable rules for the conduct of Rearick in the discharge of his duty, and for not exercising reasonable diligence and care in inquiring into and supervising his conduct as such sawyer in its employment. The case comes to this court for the second time, error being assigned to the ruling of the court upon the second trial in admitting certain evidence and in giving and refusing certain instructions to the jury.

It is contended that the court erred in permitting the jury to view the premises where the accident occurred, and to see the machinery of the mill in operation. It is not contended that the jury were in fact misled, or that any experiment was made for their enlightenment, or that the machinery was operated in any manner different from the usual method, or that the jury saw anything other than the machinery as it was in its ordinary, continuous, daily operation; but authorities are cited to sustain the proposition that to permit the jury to view the operation of the machinery which occasioned the injury which is the subject of the action is to permit the jury to take evidence outside of court, and in the absence of parties and counsel, and is error, for the reason that it affords an opportunity to the party charged with negligence to so operate the machinery as to mislead the jury in his favor. We do not think that this question is now before us. The same error was assigned when the case was formerly in this court. Olsen v. Lumber Co., 40 C.C.A. 427, 100 F. 384. It there appeared that not only had the court permitted the jury to view the machinery in operation, but it was shown that at the time when the view was had Rearick was in charge of the operation. In disposing of the error so assigned, this court, by McKenna, circuit Justice, said: 'We are not prepared to say that a view of a scene of an occurrence may not include machinery in operation. To permit the operation of the machinery, however, by the persons whose care or skill or duty is in question, is seriously disputable. ' We regard this utterance of the court as affirming the action of the trial court, and as expressing the opinion that it was not deemed error under the statute of Oregon to permit a view of the scene of an accident, together with a view of the operation of the machinery in connection with which the accident occurred. The question was directly presented to the court for adjudication, and, while the opinion of the court may not have been expressed in such clear and definite language as to constitute a precedent upon the point presented, it was, we think, sufficient for the guidance of the trial court upon the second trial. The circuit court upon the second trial (106 F. 298) so understood it, and upon deciding the motion for a new trial remarked: 'under no circumstances should I feel warranted, upon a second trial, in departing from the course pursued in the former trial, where that course had been a ground of objection on appeal, and in respect to which this court, if not sustained, had at least not been overruled nor criticised. ' We think the trial court was justified in regarding the decision of this court as settling the law of the case for its guidance upon a second trial, and, if so, it was not error to follow it, nor are we now required to enter upon a consideration of the grounds upon which the former opinion of this court was based.

The plaintiff in error earnestly contends that the defendant in error by its answer admits its negligence as it is charged in the complaint. The argument is that inasmuch as the complaint alleged that Rearick owed an active duty to give the plaintiff in error notice or warning before starting the saw carriage, and the defendant in error in its answer denied that Rearick owed such duty but at the same time admitted that the plaintiff in error was entitled to such notice, it by implication admitted that Rearick did not know that he owed plaintiff in error the duty of giving such notice, and that the defendant in error was aware of his want of such knowledge, 'for if it was not his duty he could not have supposed that it was, and the defendant in error could not have supposed that he did'; and it is contended that actual lack of knowledge on the part of Rearick that such was his duty, with notice thereof to the defendant in error, rendered Rearick incompetent and the defendant in error negligent. In brief, the argument is that because the defendant in error admitted that the plaintiff in error was entitled to notice, but denied that it was Rearick's duty to give such notice, it admitted by implication that Rearick was negligent, and that it knew that he was. The defect of the argument is that it construes the admission that the plaintiff in error was entitled to...