Rorvik v. North P. Lumber Co.

• Decision Date: 08 June 1920
• Citation: 190 P. 331,99 Or. 58
• Parties: RORVIK v. NORTH PAC. LUMBER CO. ET AL.
• Court: Oregon Supreme Court

190 P. 331

99 Or. 58

RORVIK v. NORTH PAC. LUMBER CO. ET AL.

Supreme Court of Oregon

June 8, 1920

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by A. Maude Rorvik against the North Pacific Lumber Company and H. A. Sargent and others, as receivers. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action brought under the Oregon Employers' Liability Act (Laws 1911, p. 16) for damages for the death of C. P Rorvik.

The plaintiff is the widow of deceased. The defendant corporation is extensively engaged in the business of manufacturing and dealing in lumber in the city of Portland, and maintains on its premises, and adjoining the Willamette river, a dock upon which it stores its lumber for sale, and from which the lumber is transferred to vessels for shipment to ports on the Pacific and elsewhere.

At the time of the accident the corporation was in the hands of a receiver, one Henry P. Dutton, but he subsequently resigned and Sargent, Hawkins & Bradley were appointed in his place and as such are made defendants.

The particular situation at the time of the accident is described in the complaint as follows:

"That on the 3d day of August, 1916, the said Henry P. Dutton, as receiver, was conducting said business as aforesaid, and was engaged through his servants and employés, in hauling a quantity of lumber to the said wharf of the defendant company, and placing said lumber upon the said wharf in reach of ship's tackle alongside said wharf, so that the same could be loaded upon the steamship Klamath, which was docked at said wharf; that said lumber was placed upon the cars of the said defendant company hereinbefore described, which cars were drawn by a horse, a rope or chain being attached to the rear of said cars extending forward alongside of said cars, to which the horse was hitched, the horse in drawing the same passing alongside of the said track and the cars running thereon; that on the said 3d day of August, 1916, the said C. P. Rorvik was employed by the owner of the said steamship Klamath, and was in charge of the said steamship, and engaged in loading the same at the said wharf of the defendant company with the lumber which was being placed by the said receiver upon the said wharf in reach of the ship's tackle; that at the place where the said steamship was being loaded and the place where the said lumber was being placed upon the wharf by the said receiver the said defendant company and its said receiver maintained several of its said railway tracks, which ran across said wharf at right angles to the water's edge and to the edge of the dock; the floor of said wharf was about eighteen (18) feet from the level of the river; that the said receiver on the said 3d day of August, 1916, or shortly prior thereto, had placed alongside of one of said tracks on said wharf a pile of lumber, said lumber being piled parallel with the said track and to a point within approximately thirty inches of the edge of the said wharf next to the water line; that on the said date last mentioned said C. P. Rorvik, while in the discharge of his duties as captain of the said steamship Klamath, and engaged in the loading of the said steamship as aforesaid, was standing on said wharf adjoining the river, and while the said Rorvik was standing as aforesaid the said receiver caused two of the said cars of the said defendant corporation, heavily loaded with lumber, to be drawn along the said track last mentioned which paralleled the said pile of lumber behind which the said Rorvik was standing; the said cars were not fastened together, and the forward car was being shoved forward by the weight of the rear car at the rear end of which the horse was attached as aforesaid; that the said receiver caused and allowed the said cars to be drawn along said track without providing any brakes or other contrivance by which the same could be stopped, and to be propelled in such a way that when the horse which was drawing them stopped the said cars would continue upon their journey until they should stop of their own accord; that the said cars and horse were in charge of only one employé of the said receiver; that the said receiver, by his servants, negligently and carelessly piled the said lumber so near to the said track, and placed the lumber upon the said cars in such a position, that when the forward end of the said forward car reached a point on the said track opposite to the said pile of lumber upon the said wharf a portion of the lumber upon the said forward car violently and with great force struck a portion of the said lumber piled upon the wharf, and shoved it forward, causing it to strike the said C. P. Rorvik, by reason of which he was knocked off the said wharf, receiving therefrom mortal injuries, from the effects of which he died on August 8, 1916."

The acts and omissions of defendants which the complaint sets forth as the cause of the accident are stated as follows:

"That the said injuries to the said C. P. Rorvik were caused not through any negligence or lack of care on the part of the said Rorvik, but solely through the carelessness and negligence of the said Henry P. Dutton, as receiver, and his servants and employés, in this: that he negligently and carelessly caused the said cars to be drawn along the said track in such a manner as to strike the lumber piled alongside the said track, and allowed the said cars to be used without devices or appliances with which to keep them under control and stop them, at any given time, quickly and efficaciously; and allowed the said cars to be operated by means of a horse pulling on a rope, or similar contrivance attached to the rear of the said cars, in such a manner as to allow the horse to pass along the side of the said track and opposite the said cars, and thus draw the cars forward, and without providing any means for stopping the progress of said cars in the event that the horse was stopped; and by allowing the said forward car to be shoved forward by the force and weight of the rear car without having it attached to the rear car, and without having any devices or other means for stopping it in the event that the rear car should be stopped at any time; and by allowing the said cars to be operated by one man walking along by the side thereof driving the horse pulling the same, which necessitated said man being in such a position behind the said horse and near the rear of the said cars that it was impossible for him to see the track ahead of said car, or to see the opposite side of said car, so as to protect persons who might rightfully be in such positions; and by operating said car as aforesaid without formulating, promulgating, or enforcing any rules or regulations, or providing any system of communication by means of signals or otherwise, so as to protect the public from injury by the said cars as they were being shoved forward in advance of the operator along said track; and by operating said cars with one man only, instead of providing a sufficient number of men to enable the operator to keep a watch ahead of the said cars, so as to avoid collisions with obstacles upon or near the track or with persons who might rightfully be in front of said cars; and by piling the said lumber alongside the said track in such proximity to said track that the said loaded cars were unable to pass the same without striking it; and by loading the said cars in such a manner as to allow the lumber placed thereon to strike the said lumber piled alongside the said track; and by failure to exercise such care and precaution, which it was entirely practicable to use, to prevent the car of lumber passing along said track from striking the said lumber placed alongside the track."

There were other allegations showing how the defects and omissions above set forth could have been remedied without impairing the usefulness of the agencies used by defendant in loading the vessel.

The answer denied the material allegations of the complaint; pleaded negligence on the part of plaintiff's intestate as the cause of the injury; and, by way of affirmative defense, set forth the contents of chapter 176 of the Laws of the state of California for the year 1913, known as the "Workmen's Compensation, Insurance and Safety Act," and certain amendments thereto, adopted in 1915, and designated as chapters 541, 607, and 662. The plea is too long to be inserted here, but will be further elaborated in the opinion.

It was then alleged that on the 27th day of October, 1916, plaintiff duly presented her claim to the Industrial Accident Commission, created by this act, against the Klamath Steamship Company, a California corporation and owner of the steamship Klamath, of which deceased was captain, and being the vessel which was being loaded when the accident occurred, said claim being for compensation to plaintiff for the death of her husband by reason of said accident.

The answer alleged that the Klamath Steamship Company answered said claim, and that thereby issues were made up as required in such cases, and that thereafter a hearing was had, and on the 30th day of January, 1917, findings and an award were made in favor of plaintiff and against said steamship company; that thereupon the said company caused the said proceedings to be reviewed upon certiorari in the Supreme Court of the state of California, and upon the hearing there the findings and award of the Industrial Accident Commission were in all things upheld and sustained, and are in full force and effect; that by virtue of the laws of California the liability for compensation provided by said Workmen's Compensation Act was in lieu of any other liability whatever to any person, and that the making of a lawful...