ROSS
Circuit Judge.
The
sole question presented by this writ of error is whether the
court below erred in denying a motion made by the defendant
to the action for a direction to the jury to return a verdict
in its favor.
The
action was one for damages for personal injuries sustained by
the defendant in error, who was plaintiff in the court below
while trucking pulp. The record shows that the plaintiff had
been employed by the defendant company for some time in its
paper mills at Oregon City, state of Oregon, as a grinder
but that on the 31st day of October, 1906, he was put to
trucking pulp from the warehouse out to the dock, in doing
which he had to pass through a long passageway in which there
was at one place a rather steep incline. The next day
November 1st, in running the truck, the plaintiff, in going
down the incline, stepped on a piece of pulp, slipped and
fell, sustaining the injury for which he sued. The ground of
his action was the alleged negligence of the defendant in
permitting pieces of pulp to so accumulate upon the floor of
the passageway, and the floor to be so wet, as to make the
passageway dangerous, and also in failing to keep it properly
lighted.
There
was evidence tending to show those alleged acts of
negligence; for example, the plaintiff was questioned, and
answered as follows:
'Q.
Now, in going from the warehouse to the dock, just explain
to the jury about this passageway that you had to go
through? A. The passageway is dark all the way through
there, principally. Q. Well, where was that-- in the mill?
A. Yes, sir. Q. You had to go through that, did you? A.
Yes, sir. Q. Now, tell the jury about those lights in
there. A. The lights where I fell and got my leg broke,
where I fell, is, as he told you, there, about that door
there, the door there where I come through, we would come
like I was going through there; come down through; light
comes through that door there. Q. Sit still; you don't
need to gesture. Just tell the jury coming from the
warehouse where that passage way was situated and how it
was lighted. A. Well, I can't like that out myself, for
it is a crooked road. I was never in there before. Q. How
wide was the passageway-- about how wide? A. In the place
where I fell and broke my leg, or clear through the mill?
Q. Yes, where you fell. A. Some places it was wider than it
is in others. On that slip where I broke my leg I think
that is something like 6 feet wide. There are other places,
I should judge, it is in the neighborhood of 10 or 12 feet
wide, I should judge. Q. How was that place lighted? What
light was there there? A. There where I broke my leg there
was one light sets out on a beam there, like over that
door, 25 feet. There is another light. I fell like if that
light was right there. Q. 25 or 35? A. 25 feet. Then on
down from that one, 36 feet, there is another light.
There's three lights in that one passage way. Q. How
far is it from the light, from the daylight, at the
entrance and over down to the next lamp down that
passageway? A. It is 25 feet. Q. Down that passageway, is
it? A. It is down that passageway there. Q. Now, I am
talking about the passageway you went through. How far was
it between those two lamps? A. It is 25 feet from the first
one. That first one you might say is no lamp there. The
daylight, when you come in from there, that light blinds
anyway. You can't see nothing there. Q. You think there
were about three lights through the passageway? A. I think
there were three lights, if I remember right. Q. Was there
any other light there--daylight or anything? A. No, sir,
there is no light back that way at all more than what you
get from those lamps. This way, as Mr. Griffith says,
there's lights through there; but coming in from that
way, it blinds you instead of giving you light. You
can't see nothing; you can't see the bottom. Q. Was
there any daylight in that passageway,
Mr. Bonner? A. No, sir; not only what you get from this
place back here. Q. From the end? A. Yes, sir. * * * Q.
Could you see the floor of the incline in passing over? A.
No, sir. You can't see the bottom of the floor there.
It is very dim there. Q. What is that? A. No, sir you
can't see the bottom of the floor there when you go
through there. Q. What do you mean by the bottom of the
floor-- the surface? A. Well, the floor of the incline
where you are going up that passage. Q. You can't see
it at all? A. Well, you might possibly see it by looking;
but then you can't see anything-- it is just like
looking down in a well; you can see down into it, but then
you can't see the bottom of it good. * * * Q. Could you
see the floor? A. If you had a lantern you might. Q. Did
you see the floor at that time? A. No, sir; you can't
see the floor down there where I fell without you had a
lantern.'
Fred
Kennedy, a witness for the plaintiff, was questioned, and
answered, among other things, as follows:
'Q.
You heard the plaintiff testify about this passageway
running from the storeroom out to the dock, have you not?
A. How is that? Q. Where was he hurt?
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