Pacific States Lumber Co. v. Bargar

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: HUNT, RUDKIN, and McCAMANT, Circuit
• Citation: Pacific States Lumber Co. v. Bargar, 10 F.2d 335 (9th Cir. 1926)
• Decision Date: 18 January 1926
• Docket Number: No. 4686.,4686.
• Parties: PACIFIC STATES LUMBER CO. v. BARGAR.

10 F.2d 335 (1926)

PACIFIC STATES LUMBER CO. v. BARGAR.

No. 4686.

Circuit Court of Appeals, Ninth Circuit.

January 18, 1926.

Goss & Murphy, of Marshfield, Or., and W. D. Burnett, of Portland, Or., for plaintiff in error.

Lord & Moulton, of Portland, Or., for defendant in error.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

McCAMANT, Circuit Judge.

Defendant claims that plaintiff neither alleged nor proved a cause of action under the Employers' Liability Statute. It appeared that at the time plaintiff was injured he was employed by Coos Bay Stevedoring Company. This corporation was loading on the steamship De Perre a cargo of lumber supplied by the defendant. The vessel was moored at the defendant's dock, and the defendant was delivering the lumber within reach of the ship's gear. The lumber was delivered in small four-wheel cars hauled from the mill on tracks by horses. The cargo was being stowed in several of the vessel's hatches at the same time. The defendant kept a man with a horse on the dock for the purpose of moving the cars so as to place them opposite the proper part of the vessel. This man, Sylvester by name, under instructions from the stevedoring company's foreman, moved a car of lumber, unhooking from it while it was moving about three miles an hour. When the car reached the proper place for loading the lumber, plaintiff undertook to stop it by putting a board on the track. This did not stop the car, but it rendered the load unstable, and a part of it fell on plaintiff.

The provision of the Employers' Liability Law on which plaintiff relies is the following language found in section 6785, Or. L.: "All owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices." It is contended that defendant should have put stanchions on the side of the car to have held the lumber in place; that laths should have been placed crosswise between the tiers of lumber; and that chains or ropes should have been placed about the lumber. There was a controversy as to whether any of these methods of handling the lumber were practicable, but there was some evidence to support plaintiff's contention.

The Oregon Employers' Liability Law is designed to protect employés. An action for damages under the statute will not lie at the instance of one who is not an employé carrying on his work at the place where he is injured. Turnidge v. Thompson, 89 Or. 637, 653, 175 P. 281; Saylor v. Enterprise Electric Co., 106 Or. 421, 436, 212 P. 477. Every employer whose work involves risk or danger is required by the statute to take the required precautions, not only for the protection of his own employés, but also for the protection of employés of others whose duties bring them within reach of the dangers and risks of such work. The Supreme Court of Oregon has so construed the statute, and this construction is binding on the federal courts. Clayton v. Enterprise Electric Co., 82 Or. 149, 161 P. 411; Cauldwell v. Bingham & Shelley Co., 84 Or. 257, 155 P. 190, 163 P. 827; Rorvik v. North Pacific Lumber Co., 99 Or. 58, 70, 190 P. 331, 195 P. 163.

The Oregon court has also held that the statute is inapplicable to a party who is engaged in no work at the time of the accident. McCauley v. Steamship Willamette, 109 Or. 131, 145, 215 P. 892; Warner v. Synnes (Or.) 230 P. 362; Id. (Or.) 235 P. 305. Defendant contends that the work which was in progress when plaintiff was hurt was wholly that of Coos Bay Stevedoring Company. We do not so read the record. Defendant's witnesses testify that the car of lumber which caused plaintiff's injury was delivered at the dock an hour to an hour and a half prior to the accident. Emil Nelson, superintendent of the stevedoring company, testified as follows:

"Q. Now as I understand it, Mr. Nelson, the mill company sells this lumber to the person who is taking it away on the ship, and the cars deliver that in reach of the ship's gear, don't they? A. Yes.

"Q. In other words, that means that the mill company is to put it available so that the falls from the ends of the boom will reach it? A. Yes."

With reference to defendant's employé Sylvester, Nelson testified:

"Q. He isn't a fellow that has to be told every time a car is moved? A. No. Of course his duty to fill up, the minute he sees the track is empty for him to pull loaded cars in right away.

"Q. Because of that contract between the milling company and the purchaser of the lumber? A. Yes.

"Q. By which the milling company undertakes to put the lumber in reach of the ship's gear. That is why he is there, isn't it? A. Yes.

"Q. And he is there to do the milling company's part of that contract? A. I presume that is it. The milling company is supposed to deliver the cargo to us within the ship's gear."

The defendant was delivering lumber to the ship's tackles, and the stevedoring company was stowing it on the vessel. Both corporations were active at the time of the accident, and, if the work of either involved risk or danger, it was bound to exercise the statutory precautions for the protection of the employés of the other. The district court did not err in instructing the jury as follows:

"It appears in...