Olsen v. North Pacific Lumber Co.

• Decision Date: 16 January 1901
• Citation: 106 F. 298
• Parties: OLSEN v. NORTH PACIFIC LUMBER CO.
• Court: U.S. District Court — District of Oregon

106 F. 298

OLSEN v. NORTH PACIFIC LUMBER CO.

United States Circuit Court, D. Oregon.

January 16, 1901

E. B Watson, E. Mendenhall, and John H. Mitchell, for plaintiff.

Dolph Mallory, Simon & Gearin, for defendant.

BELLINGER District Judge.

This is an action for damages for an injury alleged to have been the result of the negligence of the defendant company, through one of its employes, in its lumber mill in this city. The accident occurred on the 26th day of February, 1895. The plaintiff was employed in the defendant's mill in the capacity of off-bearer at what is called the 'pony saw,' operated by one Riley Rearick as sawyer. In this employment Rearick operated a steam derrick, by which cants or logs sawed in convenient shape for that purpose, were lifted from the floor of the mill and put upon the saw carriage, where they were sawed into lumber. It was the off-bearer's business to detach the hooks attached to the derrick chain from the cants after they had been placed upon the carriage. On the occasion of the accident, the plaintiff being, as was claimed, in the act of performing this duty Rearick, who was in charge of the pony saw, as stated, started the carriage forward while the plaintiff's right foot was upon it, so that his foot was carried forward against what is called a live roller, near the bed of the carriage, and caught and forced between such roller and a projecting head block on the carriage bed, and thereby mangled so that amputation became necessary. The plaintiff attributes the accident to the negligence of Rearick in starting the carriage forward without giving any signal or warning to the plaintiff that he was about to do so. It is alleged that Rearick was habitually careless and negligent in the performance of his duty as sawyer, of which negligent character the defendant knew, or ought to have known, and that the defendant is furthermore guilty of negligence in not giving proper instructions and providing suitable rules and regulations for the conduct of Rearick in the discharge of his duty, and for not exercising reasonable diligence and care in inquiring into and supervising and controlling his conduct as such sawyer in its employment. The case was tried before a jury, and a verdict returned for the defendant, whereupon plaintiff files a motion for a new trial upon the grounds hereinafter stated.

The first ground of the motion for a new trial is the order of the court permitting a view by the jury of the place where the accident occurred, while the mill was being operated in the usual manner. It is claimed that this view while the mill was in operation enabled the jury to form conclusions as to whether it was reasonably necessary for the head sawyer to look out for the plaintiff, or to give him notice or warning before starting the carriage, or whether the removal of the hooks from the cants was the signal for the sawyer to start the carriage, etc. It is argued that the jury cannot disregard what they have seen with their own eyes upon the view by the permission of the court, that the view was simply for the purpose of enabling them to understand and apply the testimony, and that they are not allowed to come into possession of facts during such view which are liable to influence the conclusions reached by them in the case. A number of cases are cited in support of the contention made by the plaintiff. It has been held error to permit the jury to view the premises where a collision occurred between a delivery wagon and a locomotive on a railroad track, and to observe from different points the running of an engine over the track while sitting in a wagon of the same height as that driven by the plaintiff. In another case, for damages to a dwelling house from the alleged negligent operation of an electric plant, the sheriff in charge of the jury during the view directed the employe of the defendant in charge of the works to put on steam with certain force, so as to give to the jury a practical exhibition of the operation of the works, and this was done. On appeal the judgment was reversed, the appellate court saying:

'The exhibition of the manner of conducting this plant suggested by the sheriff, while the jury were viewing the premises, was in the nature of evidence submitted to them in the absence of appellant and her counsel, and might have been highly prejudicial, as it was possible for the employes of appellee, at this suggestion of the sheriff, to have given only a modified exhibition of the manner of operating the plant, and thus to have improperly influenced them.'

These cases, and the principle upon which they are decided, are not applicable to the case on trial. They are cases against experiments conducted in the presence of the jury for the purpose of illustrating facts decisive of, or having important bearing upon, the cases on trial. In this case there was nothing in the nature of an experiment, nor did the operation of the mill in its usual way have that effect. The mill was operated, so far as appears, as it is ordinarily operated, except for the fact that Riley Rearick, whose negligence it is alleged was the cause of the plaintiff's injury, was not in charge of the operation of the saw at the time of the view. In the case last referred to the sheriff ordered the operator to put on steam with certain force, for the purpose of giving a practical exhibition of the operation of the works; and, moreover, neither the plaintiff nor her counsel was present,-- a fact to which the court gives importance in its opinion. Moreover, the charge of negligence in this case is in no way related to the manner in which the mill was being operated. It is simply a question of notice; the negligence being in the alleged fact that it was the duty of the head sawyer to give notice before starting the saw carriage, and that in failing to give this notice he was negligent, and, being habitually a careless man, the company is responsible for this negligence, and is furthermore responsible in having failed to promulgate rules and regulations to govern the conduct of said Rearick in the discharge of his duty, and in failing to inquire into and to supervise and control his conduct. The testimony as to Rearick's negligence causing the injury is that of the plaintiff, which is summarized by his attorney, in his bill of exceptions on a former trial, as follows:

'That on the 25th day of February, 1895, he (Olsen) went to work as second off-bearer at pony saw,-- Rearick, sawyer,-- by Handler's directions. That part of the afternoon of the 25th, worked as head off-bearer at pony saw. That on morning of February 26th, about 9 a.m., a large cant, 32 feet long, 16 inches thick, and 3 1/2 feet wide, was to be taken from the floor and placed on the pony carriage. Olsen, as second off-bearer, put hooks upon the cant, and it was lifted by the derrick; Rearick, sawyer, in charge of derrick. Head off-bearer and Olsen pushed cant around to its place. That it required to be turned, but he (Olsen) did not understand the signals made by the sawyer, and the head off-bearer explained what was needed. The cant was turned and placed on the carriage. That the hooks were tight in the timber, and he (Olsen) was obliged to place his foot on the edge of the carriage to get purchase so that he could pull down derrick chain so as to loose the hooks. ' That was the only place that I could have stood.' That while he was standing with one foot on the side of the pony carriage, and the other off the floor to balance his body, the sawyer, Rearick, started the carriage forward, and his foot, which was on the edge of the carriage, was caught between the projecting end of the head block and the live roller and was crushed.'

The fact that the jury saw the mill in operation could not affect the question of negligence alleged in the complaint, or the acts of negligence testified to be the plaintiff. If any view serves to illustrate how the accident happened, the fact of the machinery being in operation would only be an additional aid in that result. The mill in operation contributes nothing to the question of notice by Rearick that the carriage was about to start, nor to the question whether on this particular occasion the hooks were removed from the cant before the carriage started. If the carriage was started before the hooks were removed, then Rearick was guilty of negligence. The answer admits that it was his duty not to start the carriage until the hooks were clear of the cant. Did he do so? And, if not, was the carriage started while the plaintiff appeared to be in a position of danger, and generally did Rearick exercise reasonable care for plaintiff's safety in starting the carriage? These are vital questions of fact in the case, and the operation of the mill does not contribute anything to the determination of these questions, or any of them. The jury can no more form an idea in respect to them with the mill in operation than without it, and so the minds of the jury could not in any way have been influenced in the decision of the question of negligence by what they saw in the operation of the mill. The same is true as to any question there may be of plaintiff's own negligence. Unless the conditions as they existed at the time of the accident are reproduced, the mere operation of the mill would make no difference. It is not claimed that any attempt was made to reproduce the conditions of the accident. The plaintiff's testimony shows that these were special, if not exceptional. The cant handled at the time of the accident was 16 inches by 3 1/2 feet in width, and about 32 feet long, with a slope on one of its edges. I quote from the plaintiff's testimony on the former trial, that given on the last trial not having been transcribed:

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