Trickey v. Clark

• Decision Date: 28 January 1908
• Citation: 50 Or. 516,93 P. 457
• Parties: TRICKEY v. CLARK et al.
• Court: Oregon Supreme Court

93 P. 457

50 Or. 516

TRICKEY v. CLARK et al.

Supreme Court of Oregon

January 28, 1908

Appeal from Circuit Court, Multnomah County; Alfred F. Sears, Judge.

Action by Charles G. Trickey, as guardian ad litem for Harry K Trickey, a minor, against O.M. Clark and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This is an action to recover damages for personal injury suffered by plaintiff's son, a lad about 17 years of age, while working for defendants. At the time of the injury, and for some time prior thereto, defendants were operating a steam sawmill at Linnton, a few miles below Portland, which they had purchased a few months previously. The mill was equipped with an upright iron feed lever fastened to the floor about 2 1/2 feet from the saw pit, and which was connected with the engine and operated by the sawyer in moving the log carriage forward and backward while cutting lumber. When the lever was in an upright position the log carriage was at rest; but as there was danger of it being accidently moved, and the carriage set in motion, it was provided with a cast-iron drop fork lock or fastener attached to the frame a few inches from the floor on the side next to the saw pit, and an iron pin passing through the lever and frame just below the lock for the purpose of securely holding the lever in position when the carriage was at rest. As the appliance came from the manufacturer, the lock or fastener projected about an inch from the lever frame, and could be conveniently raised and lowered into place with the hand only. Some time prior to defendants' purchase of the mill, however, a concave steel plate projecting about 2 1/4 inches had been riveted to the face of the lock to enable the sawyer to manipulate it with his foot; but for some reason the use of the lock, as thus equipped, had been abandoned by the former owner of the mill. Two or three months before the accident complained of and while defendants were overhauling and repairing the mill their millwright and superintendent contemplated reinstalling the lock; but objection was made to his doing so by some employés because it was unsafe, and had previously permitted an automatic movement of the carriage. The attention of one of the defendants was called to the matter, and he suggested that a hole be made through the frame and lever just below the lock, and an iron pin be provided to supplement the lock which was done accordingly. As thus equipped the lever was used by defendants up to the time of the accident. It was necessary in the operation of the mill to remove the band saws from the wheels upon which they operated four times a day and take them to the filing room to be filed. Plaintiff was employed by defendants as saw filer, with his son as an assistant, and they were accustomed to aid in the work of removing the saws and taking them to the filing room. It required five or six men to do this, and they had to work in the space between the saw pit and the lever, and roll or move the saws over and across the carriage track to get them to the filing room. On the day of the accident, and while a saw was being removed and taken to the filing room, the teeth caught in the clothes of one of the workmen, and he was thrown against the lever, knocking out the pin, loosening the lock, and starting the log carriage, which caught and severely injured plaintiff's son. This action is brought to recover damages for the injuries so sustained. The negligence charged in the complaint is that defendants "carelessly and negligently failed to maintain a proper or safe fastening for said lever, so as to prevent it from jarring loose, or from being accidently moved by workmen employed in and about the mill, and that the unsafe condition of said lever in being insufficiently fastened and secured was known to the defendant during all of said time." The defendants deny the negligence charged in the complaint, and affirmatively allege (1) that they had equipped their mill with reasonably safe machinery, tools, and implements, such as ordinarily used in similar mills, and that it was provided with ordinary safe machinery and appliances in good repair and condition at the time of injury to plaintiff's ward; (2) that while the saw was being removed to the filing room by plaintiff and his fellow servants one of such servants accidently fell against the lever and released the fastening thereof, so that the log carriage was propelled forward, injuring plaintiff's son, which accident was unavoidable by defendants; (3) that whatever negligence, if any, caused the injury was that of a fellow servant and not the defendants; (4) that plaintiff's son fully understood the manner in which the lever was fastened, and the dangers incident thereto, and with such knowledge voluntarily entered upon and continued in defendants' service, and thus assumed all the risks and hazards reasonably to be apprehended in the performance of his duties. The reply put in issue the averments of the answer. Trial resulted in verdict and judgment in favor of plaintiff, and defendants appeal, assigning error in overruling their motion for nonsuit, in the admission and rejection of evidence, and in giving and refusing certain instructions.

J.F. Boothe and Rufus Mallory, for appellants.

E.E. Coovert and G.W. Stapleton, for respondent.

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

The record contains all the evidence given on the trial. In determining the questions arising on the motion for nonsuit we are therefore to consider the entire evidence. If plaintiff had not proved a cause sufficient to be submitted to the jury when he rested, the ruling on a motion for a nonsuit will not be disturbed if defendants afterward supplied the omission. Bennett v. N.P. Ex. Co., 12 Or. 49, 6 P. 160. Upon the entire record we think it cannot be said, as a matter of law, that there was no competent evidence tending to show that defendants did not exercise reasonable care in providing a suitable lock or fastener for the log carriage lever, under the circumstances attending its situation and location. The lock had been changed as it came from the manufacturer by the addition of a steel plate about 2 1/4 inches square, which necessarily made it more likely to drop from its own weight or the accumulation of sawdust thereon, or be displaced by defendants' employés working near it. Defendant Wilson testified that he was informed of its alleged unsafe conditions and the danger to be apprehended therefrom, and that he advised the use of a pin as an additional fastener. The evidence tends to show, however, that the pin as actually made was so short and loose in the hole that a dropping of the plate or an accidental contact therewith by an employé would have a tendency to drive the pin out, throw the lever, and start the carriage. Witness McKereghan testified that he could knock the lock down and drive the pin out so as to throw the lever by one motion of his foot. Moreover the fastener was located at a place where the employés were compelled to work in the discharge of their duties. There were only 2 1/2 feet between the lever and the saw pit. In this space five or six men were required to work in removing the saw. The saw itself was 12 inches wide, so there was necessarily danger of the workmen coming in contact with the lever, displacing the lock, and starting the carriage, unless the lever was safely fastened. On this evidence the court would not be justified in taking the case from the jury, and declaring as a matter of law that defendants exercised reasonable care in providing a safe fastening for the lever. Nor do we understand counsel for defendants to make any serious contention on this point. Their position is that the negligence of defendants was not the proximate cause of the injury, but it was caused by an employé accidently or negligently coming in contact with the lever and disengaging the lock, an event for which they were not responsible. The doctrine of proximate cause in negligence cases is often difficult, and much learning has been displayed in its discussion. While there is an apparent if not real conflict in the authorities, or rather in the application of the rule to the facts of particular cases, we take the law, in any event, to be settled that a master is liable for an injury to his servant, caused by the concurring negligence of himself and fellow servant, which would not have happened had the master performed his duty. 12 Ency. (2d Ed.) 905; Sherman v. Menominee River Lumber Co., 72 Wis. 122, 39 N.W. 365, 1 L.R.A. 173; Goe v. N.P. Ry. Co., 30 Wash. 654, 71 P. 182; Gila Valley, G. & N. Ry. Co. v. Lyon (Ariz.) 80 P. 337; Siegel, Cooper & Co. v. Trcka, 218 Ill. 559, 75 N.E. 1053, 2 L.R.A.(N.S.) 147, 109 Am.St.Rep. 302; McGregor v. Reid, Murdock Co., 178 Ill. 464, 53 N.E. 323, 69 Am.St.Rep. 332; Hansell-Elcock Foundry Co. v. Clark, 214 Ill. 399, 73 N.E. 787; Armour v. Golkouska, 202 Ill. 144, 66 N.E. 1037; Pullman Palace Car Co. v. Laack, 143 Ill. 242, 32 N.E. 285, 18 L.R.A. 215.

In Sherman v. Menominee River Lumber Co., supra, plaintiff was injured by an edger in defendant's sawmill, which, by reason of a defect, was unnecessarily dangerous. He was working with the edger, and was injured by a plank which was thrown backward from the machinery, due to the negligence of another operator. The trial court held that plaintiff could not recover because the negligence which caused his injury was due to a co-employé. But on appeal the cause was reversed. The court said: "We are of the opinion that the negligence of the co-employé of the plaintiff, under such circumstances, would not excuse the defendant, but would simply be negligence...