Potlatch Lumber Co. v. Anderson

• Decision Date: 07 October 1912
• Docket Number: 2,124.
• Citation: 199 F. 742
• Parties: POTLATCH LUMBER CO. v. ANDERSON.
• Court: U.S. Court of Appeals — Ninth Circuit

199 F. 742

POTLATCH LUMBER CO. v. ANDERSON.

No. 2,124.

United States Court of Appeals, Ninth Circuit.

October 7, 1912

Edward J. Cannon, G. M. Ferris, and C. E. Swan, all of Spokane Wash., for plaintiff in error.

Nuzum Clark & Nuzum, W. H. Plummer, and Henry Jackson Darby, all of Spokane, Wash., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge.

John Anderson, as plaintiff in the court below, defendant in error here, brought this action in the superior court of the state of Washington against the Potlatch Lumber Company, plaintiff in error herein, a corporation doing a logging and lumber business in the state of Idaho, to recover damages by reason of personal injuries sustained by him while working for the lumber company. The complaint alleged that on April 11, 1910 Anderson was directed by the foreman of the lumber company to work on the road used for taking out logs cut by the company in its woods near Bovill, Idaho; that it was the duty of the lumber company to use ordinary care in furnishing plaintiff with a reasonably safe place to work, and to notify him of the proximity of any choppers cutting timber in and about the work, to the end that plaintiff might protect himself from dangers, and watch the trees and the choppers near him, and avoid injury by the falling of trees; that when he had arrived at the point where he was ordered to work by the lumber company, without any warning whatsoever, and without his knowledge of the proximity of any choppers or any danger, a tree, cut by one of the employes of the lumber company, fell and struck plaintiff on his shoulder. It was charged that the lumber company was negligent in failing to notify plaintiff of the proximity of the choppers, and in failing and neglecting to promulgate or enforce rules and regulations whereby their business might be safely conducted, so that plaintiff and other employes would be protected from danger.

On motion of the lumber company, which is a corporation organized under the laws of Maine, the action was removed to the then Circuit Court of the United States for the Eastern District of Washington. After removal to the federal court, the corporation answered, denying negligence on its part, and setting up contributory negligence on the part of Anderson in failing to keep out of the way of trees which he knew were about to fall, and which he had been warned were likely to fall at any moment. Assumption of risk and negligence of Anderson's fellow servants were also pleaded.

Replication was made, denying all the affirmative defenses. There was a trial before a jury, verdict in favor of Anderson, and judgment duly entered in his favor.

Anderson had been a miner for many years, but on or about the 9th of April, just before he was hurt, he engaged to work for the Potlatch Lumber Company. In the lumber camp, where he went, there were about 200 men at work. Some were cutting trees and brush, and some were clearing roads. Anderson was directed to brush and clean and make roads. He says that when he went to work no instructions were given to him about how to protect himself in any way, nor was he warned concerning dangers; that just before he was hurt he was working cutting brush on a side hill about 1,500 or 2,000 feet from the place where he was injured; that he was sent down the hill by the man who ran the gang; that he was sent there to fix up the road, which at that point was swampy and wet, but that within a minute or so after he reached there a tree fell on him, striking him on the shoulder and arm, knocking him senseless; that he did not see anybody cutting the tree; that there was a great deal of high brush about him; and that he could not see through the brush to where the men stood who were cutting down the tree which fell upon him. Plaintiff was in the hospital for a long time, suffered greatly, and was paralyzed.

On cross-examination, it was developed that, many years before he was injured, plaintiff had worked in sawmills, but that his principal business had been mining; that, when he went to work for the Potlatch Lumber Company, he saw men sawing trees and doing things that are always done in lumber camps; that on the morning when he went to work on the hillside he was cutting brush to make a road by which lumber could be hauled out; that men about him were cutting trees, and that teams were hauling logs; that in the afternoon, just before he was hurt, he had come down to a point where he met a teamster; that he (referring evidently to the teamster) told him he wanted him to fix the road, and that he showed him and pointed to the road; that at that time he heard a crack in the brush, looked up, and felt 'the breath of the tree,' and ran, but knew nothing more about the accident.

Felix Anderson, a fellow employe of John Anderson, an experienced woodsman, testified that he saw the tree fall on Anderson; that two men, foreigners, were chopping it; that he was on the hillside only 30 or 40 feet away, but heard no warning given to anybody that the tree was about to fall; that the tree was about 12 inches at the stump; that, when he and John Anderson went to work, they were never told anything of the dangers of the particular situation about the camp, nor was any information given to them about rules with reference to giving warning by people who were chopping trees to others who might be injured. This witness testified that he had worked in many of the lumber camps in Idaho, and that it was customary for warning to be given when a tree is about to fall, but that no instructions had been given by the Potlatch Lumber Company; that he himself always gave a warning whenever he felled a tree, by shouting 'Timber. Timber.'

Another witness for Anderson testified that he had had much experience in lumber camps, and that the general custom is for the foreman to tell the men who are about to fall timber to be careful about teams and men who are working around, and that when they fall a tree to be sure and give a warning, the customary word being 'Timber.' and that anybody who is a woodsman, and works in the woods, and hears that word, is supposed to know that a tree is going to fall.

Robert Chapman, a practical 'lumber jack,' who worked in the woods for many years, testified that he worked for the Potlatch Lumber Company in March, 1911, for a few days, and later in August or September, and in October, all apparently after Anderson was hurt, and in September, 1909, which was before Anderson was hurt. He said that there were no rules or regulations in the Potlatch camp; that sometimes warning would be given, and sometimes not; that some of the foreigners-- Montenegrins and 'Bohunks' or Bohemians-- would give no warning; that when he went to work for the lumber company he was not given any instruction, and knew of no rules; that the custom of lumber caps was for any foreman to notify the men, when they were about to fall a tree, to watch out for men and their teams.

On behalf of the defendant, Thomas P. Jones, the superintendent of the woods department of the Potlatch Company, testified that he had employed Anderson, but did not remember whether he ever talked with him of the danger of being hurt, but that Anderson had said that he had worked in the woods more or less for 26 years; that it was the custom of the camp to instruct foremen to warn the men when cutting timber, in order to give everybody opportunity to get out of the way before a tree falls, and to shout 'Timber.' or 'Under.' that the sawyers cut the trees; that after Anderson was injured, witness had had a talk with him, and that Anderson then made the statement of his experience as a woodsman; and that at the interview a representative of the counsel for the lumber company wrote a statement, which Anderson signed after reading it over.

Robert A. Jones, the foreman in charge of the gang at camp No. 4, where Anderson was hurt, testified that he told Anderson to go to work 'swamping,' after Anderson had told him that he had 'swamped,' and could 'swamp' better than he could do anything else in the woods; that the custom was to tell sawyers to hollow and warn men when a tree was about to fall; that he gave such instructions to sawyers and 'swampers'; that the two men who were felling trees when Anderson was hurt were foreigners; that the sawyers were working toward the men who were fixing the road.

The teamster referred to by the injured man testified that he was driving a team and saw the tree fall; that he hollowed to Anderson to watch out; that Anderson started, but that the tree hit him before he got out of its way; that there was nothing to prevent Anderson's seeing the tree from where he stood; that there was nothing except a little brush to interfere with Anderson's seeing the men who felled the tree which hurt him.

On rebuttal, John Anderson said that he could not read English.

The lumber company assigns that the court erred in permitting the witness Robert Chapman to testify, over defendant's objection, that there were no rules or regulations adopted or enforced with reference to warning when trees were about to fall in camp No. 7 of the defendant, six months prior to the accident, for the reason that camp No. 7 was not the camp in which plaintiff was working at the time of the accident being several miles distant therefrom, and under the charge of another and different foreman; also that the court erred in permitting the witness Chapman to testify, over defendant's objection, that there were no rules or regulations adopted or enforced with reference to warning when trees were about to fall in...