Ramaswamy v. Hammond Lumber Co.

• Decision Date: 13 October 1915
• Citation: 152 P. 223,78 Or. 407
• Parties: RAMASWAMY v. HAMMOND LUMBER CO. [a1]
• Court: Oregon Supreme Court

152 P. 223

78 Or. 407

RAMASWAMY v. HAMMOND LUMBER CO. ^[a1]

Supreme Court of Oregon

October 13, 1915

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by Krishna Ramaswamy against the Hammond Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff instituted this action in the circuit court for Multnomah county against the defendant to recover damages for a personal injury inflicted upon him while he was in the employ of the defendant. Verdict and judgment went for the plaintiff in the sum of $6,500. Defendant appeals.

The defendant is a foreign corporation organized and existing under the laws of the state of New Jersey. At the time of the institution of this action its principal office and place of business was at Tongue Point, Clatsop county, Or., where it operated a sawmill with certain machinery therein. In his complaint plaintiff describes the accident resulting in the injury in four separate causes of action differing somewhat in the narration of the occurrence. Upon the trial he elected to rely upon the second cause of action, the substance of which as to the allegations of negligence is as follows: That defendant's machinery was dangerous to operate or to work near, and should have been securely covered and protected to the fullest extent that its operation would permit, but that defendant willfully and negligently failed to cover and protect it; that in the course of the operation thereof it was necessary for the safety of persons working near the dangerous machinery that there be provided a system of communications by means of signals for prompt and efficient communication between them and the employés, which system defendant negligently failed to provide; that part of the machinery consisted of cogwheels which were uncovered and unprotected; that about October 15, 1912, plaintiff was employed by the defendant as a laborer in and about the sawmill; that defendant, with willful negligence and disregard for the safety of plaintiff, by its foreman, Thomas Penny, ordered him to clean up a quantity of sawdust which had accumulated under and around a place in the sawmill in the vicinity of the dangerous machinery and cogwheels, which were not then in motion; and that in pursuance thereof plaintiff began to do the work as directed, when the defendant willfully and negligently suddenly started or caused to be started, without warning or signal to plaintiff the dangerous machinery and cogwheels in the vicinity of which plaintiff was working, whereupon the unprotected cogwheels caught the sleeve of the right arm of plaintiff's coat, pulling his right arm between said cogwheels and mangling the same, necessitating the amputation thereof.

Robert S. Shaw, the statutory agent of defendant, resided at Tongue Point, Clatsop county, Or., where the cause of action arose which place was specified in the power of attorney appointing him and filed in the office of the secretary of state. Service of summons and complaint was had upon defendant by serving the same upon its statutory agent in the above-named county. The defendant made a special appearance before the circuit court by a motion to quash the summons and the return thereof. This motion was based upon the ground, as shown by affidavit, that the action was commenced and prosecuted in the wrong county, and therefore the circuit court had no jurisdiction of the cause of action or of the defendant. The court overruled this motion, and held that by the service of the summons jurisdiction was acquired over the defendant. The defendant then filed its answer, in which it pleaded practically the same state of facts disclosed by the motion and affidavit as a special plea in abatement to the further prosecution of the action. To this the plaintiff interposed a demurrer, which was sustained by the court upon the ground that said plea did not state facts sufficient to constitute "abatement of plaintiff's complaint." Defendant stood upon such plea, and interposed a plea in bar, paragraph 1 of which, after asserting the corporate character of defendant and that it was licensed to do business in Oregon and engaged therein in Clatsop county, alleged the following in effect: That in the operation of said mill a considerable portion of the lumber cut was at the time of the accident automatically placed upon a sorting table and by endless chains passed thereon to carriers for distribution; that the sorting table was operated in sections by electric power, the controls being alongside thereof, the main table being about 300 feet in length, 12 feet in width, and elevated about 8 feet above the floor upon which it was constructed; that on each side thereof was an elevated platform about 3 feet above the floor, leaving a clear space underneath the table of about 5 feet and ample room for any person attempting to pass thereunder in the exercise of any care whatever, but that no employé was required to work thereunder, and could get under said table only by crawling; that at the time complained of about 15 of defendant's employés were working around the sorting tables under the charge of one foreman; that prior to the accident plaintiff had been in the employ of the company many months working around the sorting tables, and had full notice and knowledge of the manner of its operation and its dangers, and as to the manner of its construction and of the machinery and appliances underneath the same, and of the dangers, risks, and hazards of going under the table, and that it was no part of plaintiff's duty to do so; that plaintiff wrongfully and negligently, in violation of the duties of his employment, and without notice to or knowledge of the defendant, voluntarily went underneath the table, and so carelessly and negligently conducted himself that he placed his hand, sleeve, or clothing into the cogs of the cogwheels, which were rapidly revolving, and in plain view and fully protected, that his hand caught therein, and he thereby met with the accident, and not otherwise; that the accident was caused solely by the carelessness and negligence of plaintiff.

Paragraph 2 of the defendant's plea in bar alleges that plaintiff was skilled in the work in which he was engaged, and fully understood and appreciated the ordinary dangers, risks, and hazards of the same and assumed all the risks and dangers thereof.

A sample of the plaintiff's reply to paragraph 1 is as follows:

"Plaintiff alleges that the control of the electric power by which the section of the sorting table under which plaintiff was injured was operated was not visible from the place where plaintiff was at the time he received his injuries; and plaintiff alleges that the place where he was ordered to be by the defendant, which was the place where said injuries were inflicted upon him, was a dangerous place and known to be such by defendant; and plaintiff alleges that he was in such dangerous place only because he was directed to go there and work there, as stated in his complaint, by order of defendant; and plaintiff denies that he had been in the employ of defendant for many months and had been during said time working in and around said sorting table, or that he had full or any notice or knowledge as to the manner of construction and operation of said sorting tables or of the machinery and appliances underneath the same, or of the dangers, risks, and hazards of going underneath said table or tables; and plaintiff denies that he wrongfully carelessly, or negligently, or in violation of the duties of his employment, and without notice to or knowledge of defendant or its servants and employés, or any of them went underneath said sorting table and so carelessly and negligently conducted himself that he carelessly and negligently placed his hand, sleeve, or clothing into the cogs of the set of cogwheels which were underneath said sorting table, which said cogwheels were rapidly revolving and in plain view or fully protected. But, on the contrary, plaintiff avers that defendant, with willful and gross recklessness, carelessness, negligence, and disregard for the safety of plaintiff, ordered and directed plaintiff to go in the vicinity of the dangerous machinery and cog wheels, * * * which were not then in motion."

Then follows a reiteration of the description of the condition of the cogwheels and the direction of the defendant to plaintiff. The reply contains the following somewhat general denial:

"And plaintiff denies that said injuries were in any way due to or caused by his carelessness or negligence, or by any violation of the duties of his employment, but alleges that said injuries were caused solely and entirely as set forth in plaintiff's complaint in this action."

The other allegations of paragraph 1 and paragraph 2 of the answer were traversed in much the same manner.

G. C. Fulton, of Astoria, for appellant. Hamilton Johnstone, of Portland, for respondent.

BEAN, J. (after stating the facts as above).

It is asserted by defendant that plaintiff did not by his reply deny the allegations of its affirmative defense in bar. Before the case was called for trial defendant moved for a judgment on the pleadings upon the ground, inter alia, that its answer stated facts showing a complete defense and all matters set forth in the complaint, and that such facts were not denied in the reply. The court overruled this motion.

It will be seen that defendant pleaded contributory negligence, and also assumption of risk. While the reply thereto was not a model pleading, we think it was sufficient when we consider the general denial of any negligence on the part of plaintiff, and that it plainly appears that it was the intention of the plaintiff to deny every allegation.

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