Wild v. Oregon Short Line & U. N. Ry. Co.

• Decision Date: 08 July 1891
• Citation: 27 P. 954,21 Or. 159
• Parties: WILD v. OREGON SHORT LINE & U.N. RY. CO. [1]
• Court: Oregon Supreme Court

27 P. 954

21 Or. 159

WILD v. OREGON SHORT LINE & U.N. RY. CO. ^[1]

Supreme Court of Oregon

July 8, 1891

Appeal from circuit court, Wasco county.

Action for personal injuries by George B. Wild against the Oregon Short Line & U.N. Railway Company. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.

(Syllabus by the Court.)

Facts examined, and held that there was no evidence before the jury upon which the court could properly submit the question of defendant's negligence to the jury; and held, further that when large timbers were being moved on rollers, and those engaged in the work failed to keep the rollers at right angles with the piece of timber being moved, and by reason thereof it slued around so that the end struck a lumber pile which caused some planks to fall upon the plaintiff's leg, by means of which he was injured, that such negligence was the negligence of the plaintiff's fellow-servants for which the defendant is not responsible.

Where the plaintiff assisted in the construction of the chute for moving large timbers, and had as complete knowledge of its sufficiency for the purpose for which it was constructed as the defendant, and received an injury in the moving of the timbers down said chute, defendant is not responsible on account of its alleged unsuitableness for the purpose for which it was used.

S.H Hazard, for appellant.

J.W Bennett, for respondent.

STRAHAN C.J., (after stating the facts as above.)

An unusual number of exceptions were taken to the instructions given and refused by the court, but the view we have taken of the case renders it unnecessary to examine each exception. The real facts in this case are covered up in a vast amount of unnecessary verbiage, but, when relieved of it, they are few and plain. In the spring of 1889 the plaintiff entered the service of the defendant to pile lumber at its saw-mill on Coos bay, and the uncontradicted evidence shows that one employed in that capacity, according to the uniform custom of the mills there, also assisted in taking care of all the lumber that came from the mill; and it further appears that the plaintiff, after his employment, and up to the time of the injury complained of, assisted in moving and caring for whatever lumber was turned out by the mill. One Shagreen and Foley were employed by the defendant, who worked with plaintiff about the yard, Foley acting in the capacity of a kind of wharf-boss. The accident complained of occurred in moving timbers from defendant's saw-mill into Coos bay. The timbers to be moved were 12 in number, 20 x 22 inches and 88 feet long. The distance from the end of the car track to the bay was 68 feet, which was the distance the timbers had to be moved. A pile of lumber 64 or 65 feet long, from 15 to 20 feet wide, and about 8 feet high, extended from the mill nearly to the edge of the wharf. On the top of this lumber pile a chute was constructed by Foley and the plaintiff, but under Foley's directions. In the first place, a number of pieces of timber 5 inches thick, from 12 to 33 inches wide, were laid across the lumber pile, and on top of these were laid two planks, each 4 x 12 inches wide, extending to the edge of the wharf on a gradual incline. On the top of the chute thus formed were placed three rollers 10 inches in diameter and 2 1/2 feet long. The planks were securely spiked to their supports, and dogged together so that the same could not and did not separate. The timbers were pinched from the carriage until they rested upon the rollers. The rollers were kept straight by men with mauls attending them, as the timber was slowly and gradually moved upon them. The incline was so slight and gradual that they had no difficulty in regulating the movement of the timber on the rollers until the middle of the stick passed the edge of the wharf, where it plunged into the waters of the bay. All of the timbers were launched without accident to any one until it came to the last. After this stick was upon the rollers, they were not kept at...