Viohl v. North P. Lumber Co.

• Citation: 46 Or. 297,80 P. 112
• Parties: VIOHL v. NORTH PAC. LUMBER CO.
• Decision Date: 27 March 1905
• Court: Oregon Supreme Court

80 P. 112

46 Or. 297

VIOHL v. NORTH PAC. LUMBER CO.

Supreme Court of Oregon

March 27, 1905

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

Action by Henry Viohl against the North Pacific Lumber Company. From a judgment for defendant, plaintiff appeals. Reversed.

W.E. Thomas, for appellant.

R.A Leiter, for respondent.

BEAN J.

This is a personal injury action. The plaintiff, while working for the defendant in its sawmill, was caught in a cogwheel gearing and injured. He brought this action to recover damages; alleging that defendant was negligent, among other things, in allowing the lower part of the cogwheels to be uncovered, and in ordering and directing him to work in close proximity thereto while they were in such condition, without cautioning or warning him of the danger. The defense is a denial of negligence, and a plea of assumption of risk and contributory negligence. On the trial the plaintiff was nonsuited, and he appeals.

The facts, so far as necessary for the present purposes, are as follows: The plaintiff at the time of the injury was about 21 years old, and had been at work for defendant about 6 weeks. He had no previous experience in sawmills, and but little, if any, at work in or about machinery. He was not employed for any particular purpose, but was a common laborer in the mill and was first put to work behind the edger, off-bearing. Four or five feet from the place where he was thus required to work was a set of live rolls, extending through the mill, and past the place where he was working, which were used in carrying lumber from the main saw to the edger, and slabs to the cut-off saw, further on. These rolls were driven by a long shaft, upon which were placed at intervals cogwheels which meshed into similar wheels on the ends of the rolls. One set of these cogwheels was about opposite, or perhaps a little behind, the place where the off-bearer from the edger was required to stand while at work. The top of these wheels was covered by an iron casting, but the lower part was uncovered, and about 10 inches from the floor. Between the apron or table of the edger and the line of rolls referred to were skids, upon which the off-bearers from the edger threw the slabs and trimmings, which were then taken up by other persons and thrown across the line of rolls to the slasher or slab saw. The plaintiff, when first employed worked behind the edger, off-bearing, for seven or eight days, standing four or five feet from the cogs in question. He was then put to work elsewhere in the mill for a time, and then back to the edger for another three of four days. From that time until the day of the accident he worked at various places in the mill as directed, but not at the edger. On the morning of the accident he was put to work at the cut-off saw, and while so working the slasher broke down and remained idle for about half an hour. The edger continued operation, however, and slabs and trimmings from it accumulated on the skids and rolls, covering the cogwheels referred to. After the slasher had been repaired, plaintiff was ordered by the foreman to leave his work at the cut-off saw, and assist some other employés in removing and clearing them away. While so engaged his foot slipped, and his heel caught in the cogwheels and was injured. These cogwheels were visible a part of the time while he was off-bearing from the edger, and a part of the time were covered with rubbish and débris. It is probable (though the evidence is not very clear on that point) that he knew they were not entirely covered, but he says his attention was so confined to his work he did not have time to observe them closely. It is not seriously controverted, as we understand it, that there was evidence sufficient, if believed by the jury, to show that the defendant was negligent in leaving the cogwheels uncovered near where its employés were required to work. The contention is that the danger therefrom was open, visible, known to, and appreciated by the plaintiff, and therefore he was guilty of contributory negligence at the time of his injury, in not looking for or remembering the location of the wheels, and allowing his foot to come in contact therewith. The service being performed by the plaintiff at the time of the accident was not in the regular course of his employment, or indeed, that of any other workman in the mill. It was an unusual condition, due to the breaking down of the slasher, causing the slabs, etc., to accumulate in and over the cogwheels. The plaintiff and others were, by order of the master, taken from their usual work, and set to removing the accumulation, so that the mill could be operated in the regular way. The plaintiff's previous knowledge of the location and operation of the cogwheels, if he had such knowledge, was, of course, an important fact for the jury, in determining...