Woods v. Wikstrom

• Decision Date: 23 September 1913
• Citation: 135 P. 192,67 Or. 581
• Parties: WOODS v. WIKSTROM. [d]
• Court: Oregon Supreme Court

135 P. 192

67 Or. 581

WOODS v. WIKSTROM. ^[d]

Supreme Court of Oregon

September 23, 1913

Department 1.

Appeal from Circuit Court, Columbia County; J.A. Eakin, Judge.

Action by Harry Woods against I.G. Wikstrom to recover the sum of $10,000 as damages for personal injuries. The plaintiff recovered a verdict and a judgment for $5,000. The defendant appeals and assigns various alleged errors. The chief alleged error relied on by appellant was the refusal of the court below to grant a nonsuit on the ground of insufficiency of the evidence to be submitted to the jury. Many other alleged errors were assigned, but most of them were not argued. Affirmed.

Burnett J., dissenting.

E.B Watson and Bert E. Haney, both of Portland (Joseph & Haney, of Portland, on the brief), for appellant.

L.R Webster, of Portland (Emmons & Webster, of Portland, on the brief), for respondent.

RAMSEY J.

The defendant was engaged in the manufacture of lumber in Columbia county, in May and June, 1910, and prior and subsequent thereto. The defendant used a donkey engine and the appliances that go with it in hauling logs for his mill. The plaintiff was employed by the defendant to work for him in his sawmill business in the latter part of May and the fore part of June, 1910. He worked at different kinds of work about the mill and in the woods. He was badly injured on June 3, 1913, while engaged in such employment and this action was brought to recover damages for such injury on the ground of alleged negligence of the defendant.

The plaintiff claims: That about June 7, 1910 (it was June 3d), while he was in the employ of the defendant as "chaser," it became his duty to follow logs that were being hauled by means of a donkey engine, blocks, chains, cables, and other contrivances along a certain trail called the "poll road," and that after a certain chain, called the "butt chain," had been unhitched from said sawlogs, it became his further duty to follow said butt chain back a certain distance over the trail first above mentioned, and that the plaintiff did follow the said butt chain as became his said duty. That in following the said butt chain as above alleged, it was necessary for the plaintiff to pass within a few feet of a certain maple tree, to a branch of which was attached a block or pulley through which ran a certain cable called the "trip line," said trip line being a cable about five-eighths of an inch in diameter, and it was attached to a drum, caused to revolve by said donkey engine, placed at the foot of said trail, for the purpose of letting said trip line out, or pulling it in as the work required, and from said drum the trip line ran away out several hundred feet into the woods, passing through a number of blocks attached to stumps and trees as anchors at various places, of which the said maple tree was one, until the said trip line reached the head of the trail upon which this plaintiff worked as heretofore alleged, when it passed through a certain block and then followed the trail back to the donkey engine, where it was attached to the end of a large cable called the "main line," which was used to haul logs along the trail, and was wound or unwound upon another drum, caused to revolve by the donkey engine. That said main line was one to which was attached the butt chain followed by this plaintiff as heretofore alleged. That said trip line was for the purpose of drawing said main line and butt chain out to the woods after being unfastened from the logs. That it was the defendant's duty to furnish this plaintiff a safe and secure place to work, to provide machinery that was safe and suitable, and have all blocks and pulleys fastened to anchors that were strong, safe, and secure, so as not to unnecessarily expose his employés, and especially this plaintiff, to the danger of personal injuries. That the defendants, on the contrary, disregarded their said duty, and carelessly and negligently ordered and permitted machinery, cables, and blocks to be used that were not strong, safe, or suitable, and ordered and permitted the donkey engine, cables, blocks, and other contrivances heretofore mentioned to be placed and arranged in such a manner that they were dangerous and insecure in this: That said defendants ordered and permitted that certain donkey engine to be placed in such a manner that the cables and blocks were not attached to trees, stumps, or any other kind of anchors that were safe and strong, capable of sustaining the strain to which they were subjected; that said defendants ordered and permitted the trip line herein mentioned to be strung over a certain route that was improper and unsafe for the reasons that the anchors were weak, unsound, and dangerous, and that it was hung in such a manner as to subject the anchors to unnecessary stress and strain, and said defendants ordered and permitted a certain block through which the said trip line passed to be attached to the branch of the maple tree before mentioned, and that said tree and the said branch thereof was small, rotten, and hollow and in many other ways was not a fit or proper place to which to attach the said block; that said defendants ordered and permitted said block to be fastened to the said maple tree in a manner that was unsafe and insecure and subjected said tree and branch thereof to more strain than was necessary, of which the plaintiff had no notice or knowledge, but which was or ought to have been known by said defendants. That while this plaintiff was following the said butt chain, as heretofore alleged, the said branch of said maple tree, because of the negligence and carelessness of said defendants as heretofore set out, broke, and, by reasons thereof, the said branch, line, and block swept across the log road and down upon the plaintiff, and struck him with great force and violence, and thereby, and in consequence thereof, he was rendered unconscious for many days, his legs were broken and bruised, his head and face cut and bruised, his body maimed, mangled, and partly paralyzed, and he suffered and sustained great internal injuries, and was thereby rendered a cripple for life, unable to pursue his usual or any other vocation, to his damage in the sum of $10,000, etc.

The defendants denied the material allegations of the complaint, and pleaded, in mitigation of damages, that the plaintiff, after said accident, became intoxicated and fell, and thereby aggravated his said injuries. The defendants, also, pleaded that the plaintiff should have followed and kept within reach of the signal wire in order to give signals by the use of said wire to the engineer operating said donkey engine and thereby control the movements of said engine, etc. They allege, also, that if he had followed said signal wire, he would not have been struck by said maple tree or injured at all and claim that his injury was the result of his own negligence.

They allege, also, that the plaintiff, in consideration of $30, paid him by one of the defendants and for other valuable considerations, released his claim against the defendant I.G. Wikstrom for damages for said injury. The defendants allege, also, that the breaking of said maple branch was caused by said butt chain's catching in the forks of a log lying near said logging road. They allege that this caused an extra strain on said maple branch and caused it to break, without any fault of the defendants.

Most of the affirmative matter in the answer of the defendant I.G. Wikstrom was denied by the reply, and the reply alleges that said release of the plaintiff's claim for damages was obtained by fraud, etc. The reply denies, also, that said signaling wire was in use, and claims that it could not have been used for signaling.

The evidence showed that Frank Wikstrom, who was made a defendant, was not a partner in said mill business, and the action, as to him, was abandoned.

The substance of the defense of the defendant I.G. Wikstrom is that he was not guilty of negligence, that the injury to plaintiff was the result of his own negligence, that the proximate cause of the injury was the catching of said forked log in the cable, and the release of the right of action by the plaintiff.

1. The first point for consideration is whether the trial court erred in overruling the defendant's motion for a nonsuit.

The jury found a verdict for the plaintiff, and we are asked to set it and the judgment based on it aside for want of sufficient evidence to support them.

Section 3 of article 7 of the Constitution, inter alia, provides "In actions at law when the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there was no evidence to support the verdict." See Laws 1911, p. 7.This provision of the Constitution has been construed in several cases by this court. Forrest v. Portland Ry., Light & Power Co., 129 P. 1050; State v. Rader, 62 Or. 37, 124 P. 195; Sullivan v. Wakefield, 133 P. 641. This section of the Constitution changed the law in relation to re-examination of facts passed upon by juries, and narrowed the powers of all courts in this respect. When the amount in controversy exceeds $20, and the facts have been passed upon by a jury, and the verdict has not been vitiated by errors of law, committed by the court in rulings on the admissions of evidence or in charging the jury, no court can legally set aside the verdict or the judgment based upon it, unless the court can affirmatively say that there was no evidence to support it. If there was the evidence of only one witness testifying to facts that supported a verdict, and any number of witnesses testifying to a contrary state...